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Wednesday,

February 13, 2008

Part III

Department of
Transportation
Federal Railroad Administration

49 CFR Parts 217 and 218


Railroad Operating Rules: Program of
Operational Tests and Inspections;
Railroad Operating Practices: Handling
Equipment, Switches and Fixed Derails;
Final Rule
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8442 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION D. Secretary of Transportation’s Action accomplishing most work in a safe


Plan for Addressing Critical Railroad manner.
Federal Railroad Administration Safety Issues Over the years, however, it became
E. Railroad Safety Advisory Committee necessary to ‘‘Federalize’’ certain
(RSAC) Overview
49 CFR Parts 217 and 218 F. Establishment of the Railroad Operating
requirements, either to remedy
Rules Working Group and Development shortcomings in the railroads’ rules or to
[Docket No. FRA–2006–25267] emphasize the importance of
of the NPRM
RIN 2130–AB76 G. Development of the Final Rule compliance and to provide FRA a more
1. Summary of the Comments direct means of promoting compliance.
Railroad Operating Rules: Program of 2. RSAC’s Working Group Reviewed the These actions, which in most cases were
Operational Tests and Inspections; Comments preceded or followed by statutory
3. Consideration of Underlying Principles mandates, included adoption of rules
Railroad Operating Practices: Handling in Emergency Order 24
Equipment, Switches and Fixed Derails 4. Recognition of the Need To Improve governing—
Railroad Programs of Operational Tests 1. Blue Signal Protection for
AGENCY: Federal Railroad and Inspections employees working on, under or
Administration (FRA), DOT. III. Remote Control Operations between railroad rolling equipment (49
ACTION: Final rule. A. Background CFR part 218, subpart B);
B. Situational Awareness 2. Railroad Communications (49 CFR
SUMMARY: Human factors are the leading C. Technology Aided Point Protection part 220);
cause of train accidents, accounting for IV. General Comments/Major Issues 3. Prohibition of Tampering with
38 percent of the total in 2005. Human A. Enforcement Safety Devices (49 CFR part 218, subpart
factors also contribute to employee B. Good Faith Challenge—Legal Issues
1. FRA’s Rulemaking Authority
D); and
injuries. This final rule establishes 2. FRA’s Enforcement Authority
4. Control of Alcohol and Drug Use in
greater accountability on the part of 3. Multiple Enforcement Actions Railroad Operations (49 CFR part 219).
railroad management for administration 4. Anti-Retaliation Provision In addition, FRA has adopted
of railroad programs of operational tests C. Preemptive Effect requirements for Qualification and
and inspections, and greater V. Section-by-Section Analysis Certification of Locomotive Engineers
accountability on the part of railroad VI. Regulatory Impact and Notices (49 CFR Part 240) that directly prohibit
supervisors and employees for A. Executive Order 12866 and DOT contravention of certain specified
compliance with those railroad Regulatory Policies and Procedures operating rules and practices.
B. Regulatory Flexibility Act and Executive FRA believes these programs of
operating rules that are responsible for Order 13272
approximately half of the train accidents regulation contribute positively to
C. Paperwork Reduction Act
related to human factors. Additionally, D. Federalism Implications railroad safety, in part because they
this final rule will supplant Emergency E. Environmental Impact contribute significantly to good
Order 24, which requires special F. Unfunded Mandates Act of 1995 discipline among affected employees.
handling, instruction and testing of G. Energy Impact FRA is not specifically required by
railroad operating rules pertaining to statute to issue a regulation on the
I. Background and Authority subjects covered by this final rule.
hand-operated main track switches in
non-signaled territory. Finally, an The Federal Railroad Safety Act of However, FRA believes that establishing
appendix has been added to 49 CFR part 1970, as codified at 49 U.S.C. 20103, greater accountability for
218 to provide guidance for remote provides that, ‘‘[t]he Secretary of implementation of sound operating
control locomotive operations that Transportation, as necessary, shall rules is necessary for safety. FRA
utilize technology in aiding point prescribe regulations and issue orders initiated and finalized this rulemaking
protection. for every area of railroad safety because it has recognized that human
supplementing laws and regulations in factor train accidents comprise the
DATES: This regulation is effective April effect on October 16, 1970.’’ The largest single category of train accident
14, 2008. Secretary’s responsibility under this causes and because existing regulations
FOR FURTHER INFORMATION CONTACT: provision and the balance of the railroad have proven inadequate to achieve a
Douglas H. Taylor, Staff Director, safety laws have been delegated to the significant further reduction in their
Operating Practices Division, Office of Federal Railroad Administrator. 49 CFR numbers or severity. Moreover, the
Safety Assurance and Compliance, FRA, 1.49(m). In the field of operating rules current situation in the railroad
1200 New Jersey Avenue, SE., RRS–11, and practices, FRA has traditionally industry, which is characterized by
Mail Stop 25, Washington, DC 20590 pursued a very conservative course of strong market demand, extensive hiring
(telephone 202–493–6255); or Alan H. regulation, relying upon the industry to of new employees, and rapid attrition of
Nagler, Senior Trial Attorney, Office of implement suitable railroad operating older employees now becoming eligible
Chief Counsel, FRA, 1200 New Jersey rules and mandating in the broadest of for retirement, demands a more
Avenue, SE., RCC–11, Mail Stop 10, ways that employees be ‘‘instructed’’ in substantial framework of regulations to
Washington, DC 20590 (telephone 202– their requirements and that railroads help ensure that operational necessity
493–6038). create and administer programs of will not overwhelm systems of
SUPPLEMENTARY INFORMATION: operational tests and inspections to safeguards relied upon to maintain good
verify rules compliance. This approach discipline.
Table of Contents for Supplementary
Information
was based on several factors, including The theme of this final rule is
a recognition of the strong interest the accountability. It embodies both a broad
I. Background and Authority railroads have in avoiding costly strategy intended to promote better
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II. Proceedings to Date


A. Increase in Human Factor Caused
accidents and personal injuries, the administration of railroad programs and
Accidents and Noncompliance limited resources available to FRA to a highly targeted strategy designed to
B. Accident at Graniteville, SC and Safety directly enforce railroad operating rules, improve compliance with railroad
Advisory 2005–01 and the apparent success of operating rules addressing three critical
C. Emergency Order No. 24 management and employees in areas. Within this framework, FRA has

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taken responsibility to set out certain mishandling of equipment, switches point protection, locomotive leading;
requirements heretofore left to private and derails. and (3) employee failed to provide point
action. FRA will be monitoring A grouping of four other causes saw protection, car leading. In 2004, the first
compliance with those requirements steady increases from 133 per year in year that FRA collected data under
through appropriate inspections and 1997 to 213 per year in 2004—a those codes, FRA inspectors recorded 29
audits, and when necessary will be cumulative increase of 37 percent; these instances of noncompliance with the
assessing appropriate civil penalties to causes are (1) failure to control a railroad’s operating rules underlying the
assure compliance. Railroad shoving movement, (2) switch three codes. In 2005, the number of
management will be held accountable previously run through, (3) cars left in instances of noncompliance with those
for putting in place appropriate rules, the foul and (4) failure to apply or same codes recorded by FRA inspectors
instructions, and programs of remove a derail. Two additional causes increased to 92. These types of
operational tests. Railroad supervisors of accidents, (1) switch not latched or noncompliance are continuing with
will be held accountable for doing their locked and (2) car(s) shoved out and left some frequency as in 2006, FRA noted
part to administer operational tests and out of clear, were the cited cause of only 43 instances of noncompliance with
establish appropriate expectations with 10 accidents in 1997 and 40 accidents those cause codes and in the first half
respect to rules compliance. Railroad in 2004. of 2007, FRA has noted 23 instances.
employees will be held accountable for While the accident data shows
significant increases in these areas, the B. Accident at Graniteville, SC and
complying with specified operating Safety Advisory 2005–01
rules, and will have a right of challenge data collected by FRA during
should they be instructed to take actions inspections suggests that the number of Although the increasing number of
that, in good faith, they believe would accidents could easily increase at an human factor caused accidents
violate those rules. It is intended that even greater rate. FRA inspection data impacted the railroad industry and its
this framework of accountability shows that noncompliance related to employees, a catastrophic accident that
promote good discipline, prevent train mishandling of equipment, switches occurred at Graniteville, South Carolina
accidents, and reduce serious injuries to and derails rose from 319 to 2,954 per on January 6, 2005, catapulted the issue
railroad employees. In this year from the years 2000 to 2004—a into the national spotlight. As the
supplementary information section, nine-fold increase. The most common National Transportation Safety Board
FRA provides a detailed explanation of areas of human factor noncompliance (NTSB) described in its report NTSB/
were (1) employee failed to observe RAR–05/04, PB2005–916304 (Nov. 29,
the growing number of accidents, the
switch points for obstruction before 2005), that accident occurred when
severity of some of those accidents, the
throwing switch; (2) employee failed to Norfolk Southern Railway Company
agency’s prior actions, and a discussion
ensure all switches involved with a (NS) freight train 192, while traveling in
of major subjects addressed in the
movement were properly lined; (3) non-signaled territory at about 47 miles
proposed rule or raised by the
employee failed to ensure switches were per hour (mph), encountered an
comments to that proposal.
latched or locked; (4) employee failed to improperly lined switch that diverted
II. Proceedings to Date ensure switches were properly lined the train from the main track onto an
before movement began; and (5) industry track, where it struck an
A. Increase in Human Factor Caused employee left equipment fouling unoccupied, parked train (NS train P22).
Accidents and Noncompliance adjacent track. The collision derailed both locomotives
Several other related issues of and 16 of the 42 freight cars of train 192,
FRA has grown steadily more
noncompliance also saw substantial as well as the locomotive and 1 of the
concerned over the past few years as the
increases, although the overall number 2 cars of train P22. Among the derailed
frequency of human factor caused
of incidents found by FRA was lower cars from train 192 were three tank cars
accidents has increased. When these
than the top five. These additional areas containing chlorine, one of which was
accidents are reported, the reporting
of noncompliance are: (1) Employee left breached, releasing chlorine gas. The
railroad is required to cite the causes of
derail improperly lined (on or off); (2) train engineer and eight other people
the accident. In the case of a human absence of employee on, at, or ahead of died as a result of chlorine gas
factor caused accident, an employee or shoving movement; (3) employee failed inhalation. About 554 people
employees are typically associated with to ensure train or engine was stopped in complaining of respiratory difficulties
a failure to abide by one or more the clear; (4) employee failed to ensure were taken to local hospitals. Of these,
railroad operating rules. Over the past switches were properly lined after being 75 were admitted for treatment. Because
few years, FRA inspectors have used; (5) employee failed to reapply of the chlorine release, about 5,400
simultaneously observed a substantial hasp before making move over switch (if people within a 1-mile radius of the
increase in noncompliance with those equipped); (6) employee failed to relock derailment site were evacuated for 9 to
railroad operating rules that are the switch after use; and (7) one or more 13 days. The property damage,
frequently cited as the primary or employees failed to position themselves including damages to the rolling stock
secondary causes to these types of so that they could constantly look in the and track, exceeded $6.9 million. In
accidents. direction of movement. 2006, NS recorded expenses of $41
Accidents caused by mishandling of Some noncompliance data applies million related to this incident. This
equipment, switches and derails rose particularly to human factor mistakes burden includes property damage and
from 370 to 640 per year from the years FRA noted during inspections of other economic losses, personal injury
1997 to 2004—an increase of 42 percent. operations involving remotely and individual property damage. (It
The greatest causes of these accidents as controlled locomotives. FRA assigned should be noted that this figure does not
identified by the railroads were (1) noncompliance codes to identify the include losses for which NS was
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switch improperly lined and (2) absence following problems specifically insured, nor other costs that are
of employee on, at or ahead of a shoving associated with these remote control associated with the accident such as
movement. These two issues alone operations: (1) Employee operated liability incurred, increased shipping
account for over 60 percent of all equipment while out of operator’s range rates, higher insurance rates and other
accidents caused annually by employees of vision; (2) employee failed to provide societal costs, i.e., expenses for non-

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8444 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

railroad businesses, and expenses and re-emphasize railroad operating issuing another Safety Advisory, but
incurred related to claims from this rules so as to ensure that all main track that might at best only provide another
accident.) NTSB determined that the switches are returned to their normal temporary respite. The issuance of EO
probable cause of the collision was the position after use. The 24 was ‘‘intended to accomplish what
failure of the crew of NS train P22 to recommendations emphasized the Safety Advisory could not:
return a main track switch to the normal communication both with the implement safety practices that will
position after the crew completed work dispatcher and other crewmembers. abate the emergency until FRA can
at an industry. FRA recommended that crewmembers complete rulemaking.’’ 70 FR at 61498.
The crew’s failure violated railroad complete and sign a railroad-created FRA further concluded that ‘‘reliance
operating rules but did not violate any Switch Position Awareness Form solely on employee compliance with
Federal requirement. NS Operating Rule (SPAF). Proper completion of a SPAF railroad operating rules related to the
104, in effect at the time, placed primary was expected to trigger specific operation of hand-operated main track
responsibility with the employee communication relevant to critical switches in non-signaled territory,
handling the switch and other elements of the tasks to be performed. without a Federal enforcement
crewmembers were secondarily Additional training and railroad mechanism, is inadequate to protect the
responsible if they were in place to oversight were also recommended. public safety.’’ 70 FR at 61499.
observe the switch’s position. NTSB/ EO 24 is built on the foundation of
RAR–05/04 at 8. In addition, NTSB C. Emergency Order No. 24 FRA’s regulations, at 49 CFR part 217,
concluded that NS rules required a job Safety Advisory 2005–1 did not have which require each railroad to instruct
briefing which ‘‘would likely have the long-term effect that FRA hoped it its employees on the meaning and
included a discussion of the switches would. The Safety Advisory was application of its code of operating
and specifically who was responsible intended to allow the industry itself a rules, and to periodically test its
for ensuring that they were properly chance to clamp down on the frequency employees to determine their level of
positioned [and that] [h]ad such a and severity of one subset of human compliance. With regard to hand-
briefing taken place, the relining of the factor accidents, i.e., those accidents operated switches in non-signaled
switch might not have been involving hand-operated main track territory, EO 24 requires that each
overlooked.’’ Id. at 44. FRA concurs that switches in non-signaled territory. FRA railroad (1) instruct its employees, (2)
the lack of intra-crew communication credits the Safety Advisory with allow only qualified employees to
regarding the switch’s position was contributing to a nearly six-month operate and verify switches, (3) require
particularly significant at the time the respite from this type of accident, from employees to confirm switch positions
crew was preparing to leave the site. Id. January 12 through July 6, 2005, but with the dispatcher prior to releasing
at 8–9. following this respite there was a sharp the limits of a main track authority, (4)
Four days after the Graniteville increase in serious accidents. develop a Switch Position Awareness
accident (and coincidentally, two days Three serious accidents over a 28-day Form for employees to complete when
after a similar accident at Bieber, period from August 19 to September 15, operating switches, (5) require
California with serious, but not 2005, were the catalyst for FRA issuing employees to conduct job briefings at
catastrophic consequences), FRA an emergency order: Emergency Order important intervals, (6) require intra-
responded by issuing Safety Advisory No. 24 (EO 24); Docket No. FRA–2005– crew communication of switch
2005–01, ‘‘Position of Switches in Non- 22796, 70 FR 61496 (Oct. 24, 2005). The positions after a switch is operated, (7)
Signaled Territory.’’ 70 FR 2455 (Jan. 10, three accidents cited in EO 24 resulted enhance its program of operational tests
2005). The issuance of a safety advisory in fatal injuries to one railroad and inspections under 49 CFR part 217,
is an opportunity for the agency to employee, non-fatal injuries to eight and (8) distribute copies of EO 24, and
inform the industry and the general railroad employees, an evacuation of retain proof of distribution, to all
public regarding a safety issue, to civilians, and railroad property damage employees affected. Minor clarifying
articulate agency policy, and to make of approximately two million dollars. amendments were made to EO 24 in a
recommendations. FRA explained in the Furthermore, each of these accidents second notice, but the overarching
safety advisory that ‘‘[a] review of FRA’s could have been far worse, as each had requirements remained unchanged from
accident/incident data shows that, the potential for additional deaths, the first notice. 70 FR 71183 (Nov. 25,
overall, the safety of rail transportation injuries, property damage or 2005).
continues to improve. However, FRA environmental damage. Two of the
has particular concern that recent accidents could have involved D. Secretary of Transportation’s Action
accidents on Class I railroads in non- catastrophic releases of hazardous Plan for Addressing Critical Railroad
signaled territory were caused, or Safety Issues
materials as these materials were
apparently caused, by the failure of present in at least one of the train Prior to the Graniteville accident, FRA
railroad employees to return manual consists that collided. had developed and implemented
(hand-operated) main track switches to FRA is authorized to issue emergency procedures to focus agency resources on
their normal position, i.e., usually lined orders where an unsafe condition or critical railroad safety issues. Such
for the main track, after use. As a result, practice ‘‘causes an emergency situation procedures were appropriate even
rather than continuing their intended involving a hazard of death or personal though the industry’s overall safety
movement on the main track, trains injury.’’ 49 U.S.C. 20104. These orders record had improved over the last
approaching these switches in a facing- may immediately impose ‘‘restrictions decade and most safety trends were
point direction were unexpectedly and prohibitions * * * that may be moving in the right direction. FRA
diverted from the main track onto the necessary to abate the situation.’’ Id. recognizes that significant train
diverging route, and consequently EO 24 was necessary because despite accidents continue to occur, and the
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derailed.’’ the Safety Advisory, there was train accident rate has not shown
Safety Advisory 2005–1 strongly insufficient compliance with railroad substantive improvement in recent
urged all railroads to immediately adopt operating rules related to the operation years. Several months after the
and comply with five recommendations of hand-operated main track switches in Graniteville accident, the Secretary of
that were intended to strengthen, clarify non-signaled territory. FRA considered Transportation announced a National

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Rail Safety Action Plan to address this movement to monitor conditions ahead, train handling is an area where
need. FRA acknowledged in the plan i.e., lack of point protection, and locomotive engineers exercise
that ‘‘recent train accidents have shoving cars with point protection but discretion. 58 FR 18982, 18992 (Apr. 9,
highlighted specific issues that need still resulting in a failure to control the 1993) (describing in section-by-section
prompt government and industry movement; these two shoving related analysis why FRA amended the
attention.’’ Action Plan at 1 (published causes together accounted for 17.6 qualification and certification of
on FRA’s Web site at http:// percent of human factor accidents in locomotive engineer’s rule to require
www.fra.dot.gov/). 2004. The remaining five causes revocation only when there is a failure
In the plan, FRA introduced its basic addressed in this final rule account for to conduct certain brake tests as
principles to address critical railroad nearly 14 percent of the total number of opposed to the more general, original
safety issues. One basic principle is that accident causes; these causes involve requirement to revoke for ‘‘failure to
FRA’s safety program is increasingly leaving cars in a position that fouls an adhere to procedures for the safe use of
guided by careful analysis of accident, adjacent track, operating over a switch train or engine brakes.’’ 56 FR 28228,
inspection, and other safety data. previously run through, a failure to 28259 (June 19, 1991)). Likewise, the
Another basic principle is that FRA apply or remove a derail, a failure to operating conditions related to improper
attempts to direct both its regulatory latch or lock a switch, and a failure to coupling are too numerous to easily
and compliance efforts toward those determine before shoving that the track address through regulation, and
areas involving the highest safety risks. is clear ahead of the movement. The two determination of responsibility related
The plan is intended to be proactive in catch-all general causes that might be to train handling and train make-up
that it will target the most frequent, cited when a railroad believes one or involves often complex technical issues
highest risk causes of accidents. more related causes may apply or is that are still subject to study. See Safe
FRA identified ‘‘reducing human unsure of the exact cause are: (1) Other Placement of Train Cars, Report to the
factor accidents’’ as one of the major general switching rules; and (2) other Senate Committee on Science,
areas in which the agency planned train operation/human factors. Commerce and Transportation and the
initiatives. In fact, the plan discusses The human factor causes that are the House Committee on Transportation
this issue first because it constitutes the central focus of this final rule are of a and Infrastructure (June 2005),
largest category of train accidents, type that involve noncompliance with published at http://www.fra.dot.gov.
accounting for 38 percent of all train established railroad operating rules Developing close call data. As part of
accidents over the first five years of this related to fundamental railroad its mission to improve railroad safety,
decade, and human factor accidents operations. In each case, compliance FRA is sponsoring the Confidential
were growing in number at the time the can be objectively and conclusively Close Call Reporting System
action plan was implemented. determined. For example, it can be Demonstration Project to demonstrate
Furthermore, FRA’s plan takes aim at definitively determined whether the effectiveness of a confidential close
reducing human factor accidents switches are properly lined, locked, call reporting system for the railroad
because in recent years most of the latched or had been previously run industry. ‘‘Close calls’’ in this context
serious events involving train collisions through. It can be determined whether are unsafe events that do not result in
or derailments resulting in release of a shoving movement was made without a reportable accident but very well
hazardous materials, or harm to rail point protection or without the signals could have. In other industries such as
passengers, have been caused by human or instructions necessary to control the aviation, implementation of close call
factors or track problems. movement. Similarly, it can be reporting systems that shield the
FRA’s analysis of train accident data determined whether a car is left fouling reporting employee from discipline (and
has revealed that a small number of a track such that it is causing an unsafe the employer from punitive sanctions
particular kinds of human errors are operating condition, or whether the levied by the regulator) have
accounting for an inordinate number of track is clear ahead for a shoving contributed to major reductions in
human factor accidents. For example, movement. Finally, it can also be accidents. In March of 2005, FRA
the eight human factor causes involving determined with certainty whether there completed an overarching memorandum
mishandling equipment, switches and has been a failure to apply or remove a of understanding with railroad labor
derails that FRA is addressing in this derail. organizations and railroad management
final rule accounted for nearly 48 The top human factor causes that FRA to develop pilot programs to document
percent of all human factor accidents in is choosing not to address with this final close calls. Participating railroads will
2004; these eight causes, which resulted rule are already regulated, to some be expected to develop corrective
in accidents causing over $113 million extent, or would be significantly more actions to address the problems that
in damages to railroad property from difficult to regulate. For example, may be revealed. The aggregate data
2001–2005, can be grouped into three several human factor causes relate to the may prove useful in FRA’s decision-
basic areas of railroad operations: (1) failure to apply a sufficient number of making concerning regulatory and other
Operating switches and derails; (2) hand brakes; that issue is already options to promote a reduction in
leaving equipment out to foul; and (3) covered by regulation at 49 CFR human factor-caused accidents.
the failure to protect shoving or pushing 232.103(n). Speeding issues, including However, the project has not yet
movements. Thus, this rulemaking is restricted speed, are regulated to produced sufficient data to consider in
meant to address nearly half of all discourage clearly excessive speeding this final rule.
human factor caused accidents on all by imposing revocation periods or civil
classes of track. penalties for locomotive engineer E. Railroad Safety Advisory Committee
Of the 118 human factor causes that violators. 49 CFR 240.117(e)(2) and (RSAC) Overview
are tracked, the leading cause was 240.305(a)(2). Establishing a clear rule In March 1996, FRA established
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improperly lined switches, which alone for regulating a train handling issue, RSAC, which provides a forum for
accounted for more than 16 percent of such as a locomotive engineer’s developing consensus recommendations
human factor accidents in 2004. The improper use of an independent brake to FRA’s Administrator on rulemakings
next two leading causes were shoving or air brakes to prevent excess buff or and other safety program issues. The
cars without a person on the front of the slack action, can pose difficulties as Committee includes representation from

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8446 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

all of the agency’s major customer American Chemistry Council; accidents. The agency expressed a
groups, including railroads, labor American Petroleum Institute; desire to standardize and adopt these
organizations, suppliers and Chlorine Institute; rules as Federal requirements with
manufacturers, and other interested Fertilizer Institute; and greater accountability being the goal. It
parties. A list of member groups follows: Institute of Makers of Explosives. was also raised that training and
American Association of Private *Indicates associate, non-voting qualification programs should be
Railroad Car Owners (AAPRCO); membership. included as part of the task because
American Association of State Highway When appropriate, FRA assigns a task employee compliance is certainly
& Transportation Officials (AASHTO); to RSAC, and after consideration and directly related to how well employees
American Public Transportation debate, RSAC may accept or reject the are instructed and tested. FRA suggested
Association (APTA); task. If the task is accepted, RSAC that one area of consideration was to
American Short Line and Regional establishes a working group that improve its regulations (49 CFR part
Railroad Association (ASLRRA); possesses the appropriate expertise and 217) which require each railroad to
American Train Dispatchers Association representation of interests to develop instruct its employees on the meaning
(ATDA); and application of its code of operating
recommendations to FRA for action on
Association of American Railroads rules, and to periodically test its
the task. These recommendations are
(AAR); employees to determine their level of
developed by consensus. A working
Association of Railway Museums compliance. Many participants
group may establish one or more task
(ARM); expressed a preference for non-
forces to develop facts and options on
Association of State Rail Safety regulatory action.
a particular aspect of a given task. The On May 18, 2005, the RSAC accepted
Managers (ASRSM); task force then provides that
Brotherhood of Locomotive Engineers a task statement and agreed to establish
information to the working group for the Railroad Operating Rules Working
and Trainmen (BLET); consideration. If a working group comes
Brotherhood of Maintenance of Way Group whose overall purpose was to
to unanimous consensus on recommend to the full committee how
Employes Division (BMWED); recommendations for action, the
Brotherhood of Railroad Signalmen to reduce the number of human factor
package is presented to the full RSAC caused train accidents/incidents and
(BRS); for a vote. If the proposal is accepted by
Federal Transit Administration (FTA)*; related employee injuries. The working
a simple majority of RSAC, the proposal group held eight two-day conferences,
High Speed Ground Transportation is formally recommended to FRA. FRA
Association (HSGTA); one per month from July 2005 through
then determines what action to take on February 2006. The vast majority of the
International Association of Machinists the recommendation. Because FRA staff
and Aerospace Workers; time at these meetings involved review
play an active role at the working group of an FRA document suggesting
International Brotherhood of Electrical level in discussing the issues and
Workers (IBEW); language that could form the basis of
options and in drafting the language of proposed regulatory text.
Labor Council for Latin American the consensus proposal, FRA is often
Advancement (LCLAA)*; The draft proposed rule text that FRA
favorably inclined toward the RSAC developed for the working group was
League of Railway Industry Women*; recommendation. However, FRA is in
National Association of Railroad the agency’s first attempt to address
no way bound to follow the several broad concerns. One, FRA set
Passengers (NARP);
recommendation, and the agency out to propose regulations that
National Association of Railway
exercises its independent judgment on addressed those human factors that are
Business Women*;
whether the recommended rule achieves the leading cause of train accidents.
National Conference of Firemen &
the agency’s regulatory goal, is soundly This involved analyzing the accident/
Oilers;
supported, and is in accordance with incident data, identifying the relevant
National Railroad Construction and
policy and legal requirements. Often, causes, identifying the relevant
Maintenance Association;
FRA varies in some respects from the operating rules and procedures, and
National Railroad Passenger Corporation
RSAC recommendation in developing synthesizing those railroad rules and
(Amtrak);
National Transportation Safety Board the actual regulatory proposal or final procedures in clear and enforceable
(NTSB)*; rule. Any such variations would be language. Two, FRA’s issuance of EO 24
Railway Supply Institute (RSI); noted and explained in the rulemaking was intended to address the emergency
Safe Travel America (STA); document issued by FRA. If the working created by the mishandling of hand-
Secretaria de Comunicaciones y group or RSAC is unable to reach operated main track switches in non-
Transporte*; consensus on recommendations for signaled territory that caused several
Sheet Metal Workers International action, FRA moves ahead to resolve the tragic accidents; however, EO 24 was
Association (SMWIA); issue through traditional rulemaking never intended to be a permanent
Tourist Railway Association Inc.; proceedings. arrangement, and the initiation of an
Transport Canada*; informal rulemaking was necessary to
F. Establishment of the Railroad
Transport Workers Union of America provide the public and the regulated
Operating Rules Working Group and
(TWU); community an opportunity to provide
Development of the NPRM
Transportation Communications comment on preferences for a final rule.
International Union/BRC (TCIU/BRC); On April 14, 2005, FRA held a Human Three, as the agency with oversight of
and United Transportation Union Factors Workshop which convened railroad safety, FRA was aware of both
(UTU). members of RSAC for the purpose of the successes and failures of each
developing a task statement to be railroad’s program of operational tests
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Effective May 2006, the following presented at the next RSAC meeting. and inspections required pursuant to 49
additional members have been added to FRA explained that current regulations CFR 217.9. The draft proposed rule text
the Committee: do not address compliance with the was designed to close loopholes and
Transportation Security relevant operating rules that cause the impose specific reviews to focus testing
Administration*; preponderance of human factor and inspection programs on the

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operating rules that have the greatest been added to the docket. These certain issues and the nature of
impact on safety. documents contained the same discussions concerning those issues.
FRA clearly benefitted from the information but one document arranged FRA believes these references serve to
participation of the working group in the comments by commenter and the illuminate factors it has weighed in
detailed review of railroad operating other by section commented on. The making its regulatory decisions, as well
rules and practices. The working 14th comment received, i.e., the as the logic behind those decisions. The
group’s meetings provided a meaningful comment of Mr. Walter C. Rockey filed reader should keep in mind, of course,
forum for interested participants to be on February 5, 2007, was received too that only the full RSAC makes
able to offer insight into the strengths late to include in these summary recommendations to FRA, and it is the
and weaknesses of FRA’s suggested documents, although the comment was consensus recommendation of the full
draft proposed rule text and related reviewed and considered. Thus, FRA RSAC on which FRA is acting.
issues. Unfortunately, the RSAC considered all 14 comments filed with However, FRA is in no way bound to
participants were unable to reach a the docket. follow the recommendation, and the
consensus for making formal The 14 commenters touched upon agency exercises its independent
recommendations prior to issuance of nearly every section of the NPRM, judgment on whether the
the proposed rule. The working group’s including some who made general recommendations achieve the agency’s
consensus was limited to an agreement comments that applied to the overall regulatory goal, is soundly supported,
to reconvene to discuss the NPRM, and nature or approach of the NPRM. Some and is in accordance with policy and
any comments received, after the NPRM of the comments are addressed in the legal requirements.
comment period closed. Relying heavily section of this preamble titled ‘‘IV.
on items that the working group General Comments/Major Issues.’’ Most 3. Consideration of Underlying
achieved near consensus on and ideas of the comments, however, were Principles in Emergency Order 24
suggested by FRA that received support specific to a particular proposed section EO 24 illuminated the problems
from at least some members of the and thus it made greater sense to associated with mishandling of hand-
working group, FRA published an address the comment in the section of operated main track switches in non-
NPRM on October 12, 2006. 71 FR the preamble titled ‘‘V. Section-by- signaled territory. While there may be
60372. Section Analysis.’’ FRA believes that it more than one cause that contributes to
has addressed each of the comments noncompliance with the operating rules,
G. Development of the Final Rule accidents could be prevented by strict
made by the 14 commenters, either
As mentioned previously in this directly or indirectly, and has employee compliance with those rules.
preamble, FRA’s main purpose in consequently considered all known Accidents involving this type of switch
issuing this rule is to reduce the number reasonable alternatives to the NPRM. often occur when the employee
of accidents/incidents attributed to operating the switch loses focus on the
human factor causes and this regulation 2. RSAC’s Working Group Reviewed the task at hand. In an effort to refocus the
is narrowly tailored to accomplish that Comments attention of employees who operate
goal. The correlation between these The Railroad Operating Rules switches, EO 24’s seven sections can be
accidents/incidents and the final rule Working Group held two multi-day boiled down to three major components:
have been established. This final rule is meetings (February 8–9, 2007 and April (1) Instruction, (2) communication, and
the product of FRA’s decisions 4–5, 2007) in an attempt to achieve (3) verification through testing. FRA’s
regarding the most effective way to consensus recommendations based on final rule incorporates these three major
regulate after review and consideration the proposed rule and the comments components but with a broader
of input from both the comments filed received. The RSAC participants were application.
in the docket and the RSAC. This final able to achieve limited consensus on a Instruction. It is fundamental that an
rule is also the product of FRA’s few items and those consensus items employee cannot be expected to
experience with EO 24; FRA is adopting were agreed to by the full RSAC. In the properly abide by operating rules
many of its requirements and revising areas where RSAC was able to achieve without proper instruction, especially
others. Furthermore, this final rule a consensus recommendation, FRA when those operating rules have been
requires revisions to each railroad’s honored the principle of each amended. To that end, EO 24 provides
operational testing and inspection recommendation and generally sought an outline for essential initial
program to ensure that each railroad’s to carry forward the elements of the instruction and periodic instruction.
officers are better qualified to conduct discussion draft that had benefited from Likewise, FRA is requiring enhanced
tests and inspections and each railroad thoughtful comment by RSAC instruction, training, and examination,
is, in fact, focusing its program on the participants. The final rule’s text, i.e., qualification, for employees on the
most serious safety concerns. however, might be slightly different in relevant operating rules, pertaining to
light of regulatory drafting handling equipment, switches and fixed
1. Summary of the Comments requirements. FRA developed a greater derails.
The NPRM specified that written appreciation for the nuances of each of Communication. FRA agrees with the
comments must be received by the railroad operating rules and general principle that mistakes can be
December 11, 2006, and that comments practices discussed; and, armed with prevented or corrected by proper
received after that date would be that additional insight, FRA has sought communication. Communication
considered to the extent possible to put forth a reasonable final rule that prevents noncompliance and accidents
without incurring additional expense or reflects real world railroading. because it generally is how people
delay. FRA received 12 comments by FRA has noted in the section-by- working together know what each other
the deadline and two comments after section analysis where we have adopted is doing. For example, EO 24 stressed
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the deadline. As an aid to further an RSAC recommendation or deviated the importance of communication by
discussion at a meeting of the RSAC from it. FRA also refers to comments requiring job briefings at certain crucial
Operating Practices Working Group held and suggestions made by members of intervals: Before work is begun; each
in early February 2007, FRA prepared the Working Group, full RSAC, or other time a work plan is changed; and at
two comment summaries which have commenters so as to show the origin of completion of the work. Such regular

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job briefings ensure that employees that other crewmember is also required or other fixed signal will be missed or
working together understand the task to request information as to the switch’s misinterpreted by a crew. Meanwhile,
they are intending to perform and alignment. As FRA clarified in EO 24’s NTSB states that it ‘‘has investigated a
exactly what role is expected of them second notice, it is immaterial how number of accidents in which such
and their colleagues. Through proper crewmembers communicate, e.g., forms, although required and used, did
job briefings, employees can prevent whether in-person, by radio, by hand not prevent crews from missing signals
some mishaps and contain others from signals, or other effective means, as long and causing accidents.’’ Id.
worsening a bad situation. For these as the communication takes place. 70 Although NTSB does not support the
reasons, FRA proposes a job briefing FR 71186 and 71188. By requiring both use of a SPAF, it did express agreement
component to this rulemaking. the SPAF and the intra-crew with the emergency order in two
In the background section of EO 24, communication, FRA is requiring some respects. That is, NTSB supported EO
FRA described a recurrent scenario of redundancy, i.e., two communication 24’s requirements directing that job
noncompliance where a train crew’s reminders to properly line and lock briefings be held at the completion of
mistake in leaving a main track switch such switches in the case of a train. work and that a train crewmember who
lined for movement to an auxiliary track For purposes of EO 24, the paperwork repositions a hand-operated main track
was the last act or omission that burden and the redundancy in switch in non-signaled territory
resulted in an accident; and yet these communication created by the communicate with the engineer
types of accidents are preventable introduction of the SPAF was regarding the switch position. In
through reliable communication of the acceptable. The very sharp increase in support of this position, NTSB explains
actual switch position. This scenario collisions, deaths and injuries resulting that ‘‘a comprehensive safety briefing
‘‘occurs when a train crew has exclusive from improperly lined main track was not held before the work at
authority to occupy a specific track switches required FRA to take decisive Graniteville [and] [h]ad such a briefing
segment until they release it for other action. Prior to EO 24, many railroads been held before and, more importantly,
movements and [yet] that train crew had already adopted the use of a SPAF after the work (as required by the FRA
goes off duty without lining and locking voluntarily as a best practice suggested emergency order), the accident might
a hand-operated main track switch in its in Safety Advisory 2005–1. However, have been avoided.’’ Id. at 46. As stated
normal position.’’ 70 FR at 61497. It is the inclusion of a SPAF in EO 24 does previously, FRA is retaining these two
unfortunate that FRA has to clarify that not bind the agency to forever require it; aspects from the emergency order in its
the communication be reliable and and the final rulemaking promulgates an rule.
accurately reflect the switch position, alternative approach that does not The EO 24 requirements for
but some accident investigations have include it. Of course, as this subpart employees releasing the limits of a main
revealed employees whose actions prescribes minimum standards and each track authority in non-signaled territory
implied more of an interest in quitting railroad may prescribe additional or to communicate with the train
work for the day than taking the safe more stringent requirements, each dispatcher have, for the most part,
route to verify a switch’s position and railroad has the choice to decide carried over to this final rule and been
whether it was properly locked. FRA’s whether to continue using a SPAF after strengthened. The final rule retains the
final rule retains EO 24’s emphasis on the effective date of this rule. requirement in EO 24 that an employee
intra-crew communication or intra- FRA decided not to require a SPAF in releasing the limits of a main track
roadway worker group communication. this final rule because the authority in non-signaled territory
See 70 FR at 61499–50 and § 218.105. comprehensive communication communicate with the train dispatcher
Perhaps the most controversial aspect requirements contained in §§ 218.103 that all hand-operated main track
of EO 24 is the requirement that and 218.105, create a direct enforcement switches operated have been restored to
employees operating hand-operated mechanism that makes enforcement their normal position, unless the train
main track switches in non-signaled through a SPAF redundant. For dispatcher directs otherwise, but only to
territory complete a Switch Position example, the final rule includes a the extent that the switches are at the
Awareness Form (SPAF). The SPAF requirement that all crewmembers location where the limits are being
requirement is controversial because it verbally confirm the position of a hand- released. 70 FR at 61499 and
creates a paperwork burden for operated main track switch that was § 218.105(d). With the elimination of the
employees and railroads. Switches may operated by any crewmember of that requirement for a SPAF, it would be
be lined and locked properly, but a train before it leaves the location of the difficult for an employee to recall the
violation of EO 24 may occur for merely switch. See § 218.105(c)(1). Likewise, condition of any particular hand-
failing to fill out a single component on the final rule requires that upon the operated main track switch operated
the form. Critics of the form may not expiration of exclusive track occupancy and there would likely be a reaction for
appreciate that FRA’s intention for authority for roadway workers, roadway an employee to believe he or she left all
requiring a SPAF is to create a workers who operate hand-operated such switches in proper position—
contemporaneous communication that main track switches report the position without much opportunity to double-
reminds the employee of the importance of any such switches operated to the check the condition of those faraway
of properly lining and locking such roadway worker in charge. See switches at that time. As mentioned
main track switches. § 218.103(c)(2). previously, accidents often occur where
In the case of a train crew, the NTSB also ‘‘does not believe that the limits are being released and that is
contemporaneous communication * * * the use of forms [such as a SPAF] why the final rule has placed emphasis
created by the SPAF is twofold: (1) The is sufficient to prevent recurrences of on addressing the problem prior to
SPAF itself is a written communication accidents such as the one at departing the train’s location. The
that reminds the employee operating the Graniteville.’’ NTSB/RAR–05/04 at 45. switches located at the point of release
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switch to keep track of the switch’s In support of this position, NTSB cites of the limits should be readily
position and (2) another crewmember, to the example of railroads that require accessible for any employee who is
typically the locomotive engineer, train crews to record signal indications unsure of the condition the switch was
serves as a secondary reminder to the as they are encountered en route in last left in. The final rule also adds the
employee operating the switch because order to lessen the chance that a block requirement that the employee report

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that the switch has been locked; locking including but not limited to rules inspections that should help guide each
of the main track switch should prevent addressing handling of switches. railroad in the implementation of its
easy access to unauthorized users. In EO 24, FRA’s verification through program. The quarterly and six-month
Hand-in-hand with the EO 24 testing and inspection requirements reviews for freight railroads, as well as
requirement that the employee contact were narrowly focused on those the reviews for passenger railroads, in
the dispatcher to release main track operating rules involving the operation § 217.9(e) would formalize a best
authority in non-signaled territory is the of hand-operated main track switches in practice from some of the largest and
corresponding requirement in EO 24 for non-signaled territory. The purpose of safest railroads nationwide. These
train dispatchers; that is, EO 24 requires this narrow focus was to create a special reviews are intended to ensure that each
that the train dispatcher must also obligation for only those types of rules railroad is conducting tests and
confirm the switch positions with the violations that were causing the inspections directed at the causes of
employee releasing the limits before emergency situation. FRA still believes human factor train accidents and
clearing the limits of the authority and compliance with these types of rules employee casualties. Each program will
confirm that the SPAF was initialed as should be verified. The final rule be specifically required to include
required. The final rule also requires the replaces EO 24’s requirements and adds appropriate tests and inspections
train dispatcher to verify the switch requirements for verification of testing addressing the rules dealing with
position information with the employee on a broader number of operating rules handling of switches, leaving equipment
and the requirement for the dispatcher directly related to the root cause of in the clear, and protecting the point of
to confirm that the switch is locked in human factor accidents; that is, the final the shove. Structured tests or
the intended position by repeating to rule requires testing of all the rules observations permit railroads to find
the employee releasing the limits the related to part 218, subpart F, not just employees that need additional training
report of the switch position and asking those rules related to hand-operated or who may benefit from a reminder that
whether that is correct. The final rule main track switches in non-signaled it is not acceptable to take shortcuts that
also strengthens the current requirement territory. violate the operating rules.
The final rule also amends §§ 217.4 Furthermore, the final rule’s
in EO 24 by requiring that the employee
and 217.9 to require competency of requirements to amend the program of
then confirm this information with the
railroad testing officers. In FRA’s view, operational tests and inspections, by
train dispatcher.
it is unfathomable that railroad testing emphasizing its purpose to focus on
Verification through testing. The third officers would be allowed to conduct operating rules violations that cause
major component of EO 24’s tests and inspections without proper accidents, should cut down on the
requirements involves the verification of instruction, on-the-job training, and disparity between the few instances of
compliance through testing. FRA’s some kind of written examination or noncompliance found by many railroads
regulations, at 49 CFR Part 217, require observation to determine that the person with the many instances of
each railroad to instruct its employees is qualified to do the testing; however, noncompliance found through FRA
on the meaning and application of its Federal regulations currently do not inspections on the same railroads (see
code of operating rules, and to require that railroad testing officers be discussion in ‘‘Increase In Human
periodically test its employees to qualified in such a manner. Railroads Factor Caused Accidents and
determine their level of compliance. should already be shouldering this Noncompliance’’). While railroads have
Compliance with railroad operating burden without Federal requirements so universally done an acceptable job of
rules is critical, especially when we do not view this as a substantial taking corrective action following an
technology does not provide a fail safe burden; instead, we view the accident, railroads have not done as
option. qualification of railroad testing officers well in consistently testing for the
4. Recognition of the Need To Improve as a necessary expense of operating a variety of operating rules, at a variety of
Railroad Programs of Operational Tests railroad. locations, and at different times of the
and Inspections Furthermore, railroad officers that test day, in order to meet FRA’s expectations
for noncompliance are typically the for an effective testing and inspection
Most railroads have excellent written same officers who are in charge of program. Accidents and incidents of
programs of operational tests and operations. In that regard, a railroad noncompliance should be prevented by
inspections, but FRA has identified officer, who is knowledgeable of Federal the formalization of the process of
weaknesses in the oversight and requirements and the government’s verification through testing and FRA’s
implementation of nearly all of these enforcement authority over individual ability to inspect each railroad’s
programs. For example, some railroad officers, should be discouraged from program of operational tests and
testing officers lack the competency to ordering an employee to violate any inspections, as well as its records.
perform operational tests and operating rule inconsistent with Finally, FRA emphasizes that it is
inspections. Likewise, some railroads do proposed part 218, subpart F. In other retaining an enforcement mechanism, as
not perform operational tests that words, if all railroad testing officers on it did in EO 24, because prior reliance
address the root cause of human factor a particular railroad are properly on the railroad to ensure employee
accidents, while others view the qualified, it will be more difficult for compliance with railroad operating
requirement as a numbers-generating railroad officers to accept inconsistency rules without a Federal enforcement
exercise, and consequently conduct in the application of operating rules. mechanism has repeatedly proven to be
relatively few meaningful tests. That is, FRA is amending § 217.9 to require inadequate to protect the public and
while it may be important that railroads to focus programs of employee safety. Under current
employees come to work with the operational tests and inspections ‘‘on regulations, FRA has been able to
proper equipment (and FRA considers those operating rules that cause or are effectively intervene in railroad
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that a basic requirement which, of likely to cause the most accidents or operating rules compliance issues (apart
course, must be satisfied), FRA’s incidents.’’ See § 217.9(c)(1). Except for from those already codified as
concern is that not enough verification the smallest freight railroads, FRA is obligations under existing regulations)
testing is occurring on the operating requiring that each railroad conduct one only indirectly, through use of
rules most likely to cause accidents, or more reviews of operational tests and substantial resources, and in the case of

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exceptionally pervasive noncompliance. Safety Advisory is meant to relieve a 15 days to a maximum of three years.
The system of accountability provided railroad from compliance with all The length of the prohibition (or
for in this final rule will, by contrast, existing railroad safety regulations [and] revocation of the certificate) depends on
encourage railroad management to [t]herefore, when procedures required whether the person was found to have
prevent a lessening of oversight or by regulation are cited in this Safety committed other violations within the
decline in compliance by reviewing Advisory, compliance is mandatory.’’ previous three years and whether the
safety performance in detail, assisting Id. at 10343. For example, the Safety railroad, using its discretion,
individual employees to acquire habits Advisory clearly states that ‘‘each determined that the person had
of work that are consistent with safety person operating an RCL [remote control completed any necessary remedial
by permitting them to challenge locomotive] must be certified and training.
directions that could cause them to cut qualified in accordance with 49 CFR Furthermore, FRA addressed the
corners, and permitting individual FRA Part 240 [FRA’s locomotive engineer current Federal locomotive inspection
inspectors to more persuasively seek rule] if conventional operation of a requirements and the application of
corrective action early in the process of locomotive under the same those requirements to remote control
deteriorating rules compliance. circumstances would require locomotive technology. For example,
certification under that regulation.’’ Id. the Safety Advisory states that the
III. Remote Control Operations at 10344. remote control locomotive ‘‘system must
A. Background In November 2001, all six major be included as part of the calendar day
railroads submitted to FRA their inspection required by 49 CFR 229.21,
Remote control devices have been training programs for remote control since this equipment becomes an
used to operate locomotives at various operators as required by Part 240. Since appurtenance to the locomotive.’’ 66 FR
locations in the United States for many that initial filing, several railroads have at 10344 (emphasis added). Another
years, primarily within certain made changes to their remote control example of a mandatory requirement
industrial sites. Railroads in Canada training programs at FRA’s request. FRA mentioned in the Safety Advisory is that
have made extensive use of remote is closely monitoring this training and the remote control locomotive ‘‘system
control locomotives for more than a making additional suggestions for components that interface with the
decade. FRA began investigating remote improvement on individual railroads as mechanical devices of the locomotive,
control operations in 1994 and held its they become necessary. These training e.g., air pressure monitoring devices,
first public hearing on the subject in programs currently require a minimum pressure switches, speed sensors, etc.,
February 1995 to gather information and of two weeks classroom and hands-on should be inspected and calibrated as
examine the safety issues relating to this training for railroad workers who were often as necessary, but not less than the
new technology. On July 19, 2000, FRA previously qualified on the railroad’s locomotive’s periodic (92-day)
held a technical conference in which all operating and safety rules. Federal inspection.’’ Id. (emphasis added); see
interested parties, including rail unions, regulations require that locomotive 49 CFR 229.23. Thus, the Safety
remote control systems suppliers, and engineers be trained and certified to Advisory reiterated that existing Federal
railroad industry representatives, shared perform the most demanding type of regulations require inspection of the
their views and described their service they will be called upon to remote control locomotive equipment.
experiences with remote control perform. Thus, a remote control Although some aspects of this
operations. This meeting was extremely operator who will only be called upon proposed rule pertains to main track
beneficial to FRA in developing its to perform switching duties using a operations where remote control
subsequent Safety Advisory. remote control locomotive would not locomotive operations rarely occur,
On February 14, 2001, the FRA need to be trained to operate a most of the problems this proposal is
published recommended guidelines for locomotive on main track from the intended to address are found equally in
conducting remote control locomotive control stand of the cab. Major railroads conventional and remote control
operations. See 66 FR 10340, Notice of are currently reviewing their remote locomotive yard switching operations.
Safety Advisory 2001–01, Docket No. control operator training plans in light As FRA reported to Congress earlier this
FRA–2000–7325. By issuing these of discussions with labor year, ‘‘RCL [i.e., remote control
recommendations, FRA sought to representatives and FRA regarding the locomotive] and conventional train
identify a set of ‘‘best practices’’ to requirements of these positions. accident rates were virtually identical
guide the rail industry when In addition to the required training, for those major railroads that made
implementing this technology. As this is the regulations require railroads to extensive use of both types of
an emerging technology, FRA believes conduct skills performance testing of operations.’’ ‘‘Final Report—Safety of
this approach serves the railroad remote control operators that is Remote Control Locomotive
industry by providing flexibility to both comparable to the testing required of Operations’’ (‘‘Final Report’’) (March
manufacturers designing the equipment any other locomotive engineer 2006) (published on FRA’s Web site at
and to railroads in their different performing the same type of work. http://www.fra.dot.gov/). The current
operations, while reinforcing the Federal regulations also hold remote remote control locomotive technology is
importance of complying with all control operators responsible for best used for yard switching operations
existing railroad safety regulations. All compliance with the same types of and is primarily used for that purpose.
of the major railroads have adopted railroad operating rules and practices See Final Report at 15–17.
these recommendations, with only that other locomotive engineers are The final rule would continue FRA’s
slight modifications to suit their required to comply with in order to policy of implementing minimum
individual requirements. retain certification. See 49 CFR 240.117. requirements for safe remote control
Regarding the enforcement of Federal Any alleged noncompliance triggers an locomotive operations within the
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regulations as they apply to remote investigation and review process. If a confines of railroad operating rules
control locomotive operations, the violation is found, the remote control having broad applicability. As
Safety Advisory explains that: operator will be prohibited from previously explained, FRA has found
‘‘although compliance with this Safety operating a locomotive on any railroad existing rules adequate to accommodate
Advisory is voluntary, nothing in this in the United States for a minimum of safe remote control locomotive

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operations without the need to draft a diverted onto a connecting track related to one or more remote control
rule narrowly focused on remote control unintentionally and go unnoticed if the operator’s control of a movement from
locomotive operations. See Docket No. remote control crewmembers are not a physical location away from the
FRA–2000–8422 (found at http:// observing the direction of movement. remote control locomotive and/or cut of
dms.dot.gov/) (denying a request for Apparently, the latter is what happened cars. Consequently, the independent
initiation of a rulemaking to solely on December 7, 2003, on the Union contractor who performed the root cause
address remote control locomotive Pacific Railroad in San Antonio, Texas, analysis identified the loss of remote
issues). That said, after identifying when a remote control locomotive control operator situational awareness
certain characteristics of remote control operator, while switching, was struck as one of only four critical safety issues
locomotive shoving or pushing and killed by his locomotive at the west identified. See Final Report at 85–90.
operations, FRA is implementing one end of UP’s East yard. The employee FRA also sponsored the same
requirement that pertains to remote had reversed one end of a crossover independent contractor to undertake a
control locomotive operations; that switch and was walking toward the study based on focus group sessions
requirement addresses the problem of other end of the crossover switch to line with remote control operators. These
lack of situational awareness. See it when he was struck from behind by sessions provided a forum to gather
§ 218.99(c). FRA also recognizes the the remote control locomotive. The information about operator experiences
relatively new use of permanently employee had started the remote control with remote control locomotive
installed cameras in yards or at grade locomotive moving as he was walking operations, to identify safety issues,
crossings which permit an employee to toward the other end of the crossover. lessons learned, and best practices from
provide point protection without being See Final Report at 90. This move was those who are most familiar with remote
physically present on, at, or ahead of the initiated after the employee pushed a control locomotive operations and
movement. Although it is possible for button to realign a power-assisted equipment. Focus groups also provided
this technology to be used in switch, but likely did not wait at the a means to solicit suggestions on how to
conventional operations, e.g., by a switch machine to confirm visually that improve remote control locomotive
yardmaster for a train crew, we believe the points had moved to the correct operations. One of the themes identified
it is more often used for remote control position. NTSB/RAB–06/02 at 9. In was that situational awareness can be
locomotive operations. See addition to lack of adequate railroad lost when the remote control operator is
§ 218.99(b)(2). The following oversight of the misaligned power- not in the immediate vicinity of the
background on these two issues should assisted switch, NTSB concluded that remote control locomotive. Among the
illuminate them further. the probable cause of this accident was recommended practices from the focus
the employee’s ‘‘inattentiveness to the groups were the suggestions to
B. Situational Awareness standardize operating practices and to
location of the locomotives and the
In FRA’s recent report to Congress, require remote control operators to
switch position.’’ NTSB/RAB–06/02 at
the agency identified the potential for a protect the point at all times. See Final
11. Certainly, this inattentiveness is
reduction in a remote control operator’s Report at 79–85.
another way to describe a lack of
situational awareness as one of four The Brotherhood of Locomotive
situational awareness.
human factor issues that warrant close Engineers and Trainmen (BLET)
attention as remote control locomotive As many railroads were not eager to sponsored a study by Dr. Frederick C.
technology continues to evolve. See invest in remote control technology Gamst, a private consultant specializing
Final Report at 24–26. A locomotive until after FRA issued its Safety in railroading, and Mr. George A.
engineer, including a remote control Advisory 2001–01, there is limited data Gavalla, a private consultant and former
operator, who is located in the cab of a and few studies completed detailing the FRA Associate Administrator for Safety.
controlling locomotive has a greater safety implications of remote control ‘‘Hazard Survey of Remote Control
situational awareness than a remote operations; however, among the few Locomotive Operations on the General
control operator located on the ground. studies that have been completed, System of Railroads in the United
A remote control operator located on the situational awareness has arisen as a States’’ (‘‘BLET Study’’) (The BLET
ground may also be more easily recurring theme. For example, in a Study is available in the docket for this
distracted by conflicting movements or study funded by FRA, an independently NPRM). The BLET Study is based on
other physical dangers caused by conducted root cause analysis of six anecdotal information supplied by
continuously moving about the yard remote control locomotive-involved railroad workers and officers who
than a person located in a locomotive accidents/incidents that occurred in voluntarily self-reported their thoughts
cab. The nature of remote control 2006, found that the loss of situational and experiences concerning their
locomotive operations can also cause awareness was a major factor in five of interactions with remote control
the remote control operator to be the accidents/incidents analyzed. operations. All of the self-reporting was
distracted by concentrating on Human Factors Root Cause Analysis of done in writing and mainly via the
switching operations, e.g., constantly Accidents/Incidents Involving Remote Internet in its various forms of
referring to the switch list, coupling and Control Locomotive Operations (May communication (i.e., e-mails, bulletin-
uncoupling cars, and, pitching and 2006) (DOT/FRA/ORD–06/05) boards, weblog, etc.). The study
catching. Also, a remote control (published on FRA’s Web site at http:// catalogues the myriad experiences,
operator on the ground may forget, or www.fra.dot.gov/downloads/Research/ complaints, and ideas that were
may not know, the locomotive ord0605.pdf). Further analysis suggests recorded by Dr. Gamst over three years
orientation (i.e., the particular direction that remote control locomotive beginning in January 2002. The
the remote control locomotive is technology facilitated this loss of anecdotal information collected by Dr.
heading) due to his or her location away awareness in four of these five Gamst reflects the same general themes
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from the remote control locomotive, and accidents/incidents by enabling remote identified in the focus group study
thus may inadvertently initiate a control operators to control their cuts of sponsored by FRA and described in the
movement in the wrong direction. cars away (i.e., remotely) from the point preceding paragraph. As in FRA’s
Similarly, a defective or misaligned of movement. Additionally, four sponsored focus group study, the
switch could cause a movement to be probable contributing factors were information Dr. Gamst collected is not

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statistically sampled to be to part 218. Appendix D includes the monitor and thus that has also been
representative of all remote control further explanation and mandatory added to the requirements. The fourth
operators in the U.S. or Canada. While requirements for exercising the option and fifth requirements for such
the main drawback to these types of to provide point protection with the aid operations are intended to ensure that
studies is that the researchers do not of technology as permitted in the cameras are arranged so that the
attempt to validate any statements made § 218.99(b)(3)(i). remote control locomotive operator can
by employees, as participation is often The issue of reliance on non- accurately judge the end of the
premised on the condition that crewmembers to carry out some remote movement’s proximity to the crossing as
employees remain anonymous, the control locomotive operator crew well as the speed and driver behavior of
collection of individual opinions and functions was raised in the focus group any approaching motor vehicles. Six,
perceptions taken as a whole are useful study sponsored by FRA and the remote control locomotive operator
in identifying problems associated with summarized in the Final Report. The is required to be able to determine that
remote control operations. Like the remote control operators that made up the flashing lights and gates are working
FRA’s sponsored studies, the BLET’s the focus groups had indicated that as intended either by sufficient camera
sponsored study also identified there were occasions in which a non- resolution or a remote health monitoring
perceived problems associated with a crewmember, generally a yardmaster, system. The seventh and final
remote control crew not observing the would provide point protection, line requirement for such operations is that
direction of movement. Specifically, the switches, or check the status of a derail the railroad notify FRA’s Associate
BLET study raised the issue as the for a remote control crew. When this Administrator for Safety in writing
reason why a remote control operator was allowed, several potential problems when this type of protection has been
might keep shoving or pulling after a could result. First, there is great installed and activated at a crossing.
movement derailed or collided with an potential for an error in communication
obstruction. Id. at 60–62. or a misunderstanding between the non- IV. General Comments/Major Issues
crewmember and the crewmembers A. Enforcement
C. Technology Aided Point Protection regarding the activity or status of
The proposed rule contained a equipment. Further, a yardmaster who FRA received a variety of comments
preamble discussion regarding how is occupied with his or her other that expressed concern about
cameras and other technologies are responsibilities might not give the task enforcement of the rule. At the RSAC
increasingly being installed as an the attention it deserves, or could be working group meetings, the labor
alternative to having an employee distracted and give an incorrect answer organizations expressed concern that
directly observing the leading end of a to a question by a remote control the final rule might enable FRA to
shoving or pushing movement. The crewmember (e.g., ‘‘is the move assess civil penalties against individual
technology permits indirect observation lined?’’). The result could be that the employees for noncompliance with
and is in use, mainly in yards, to task does not get completed or there is what were formerly just railroad
provide point protection during remote an error in task execution. Further, the operating rules. FRA understands from
control operations or when it would be remote control crew might not have any the comments and RSAC discussions
more efficient during some conventional alternative way of determining that that the labor organizations would
operations. In the proposed rule, FRA there is a problem with the point prefer that FRA implement a process for
explained that it is possible to set up protection provided by the non- employees to report unsafe conditions,
these cameras and monitors so that they crewmember until it is too late. See such as FRA’s Confidential Close Call
provide at least an equivalent level of Final Report at 82. Similar issues were Reporting System Demonstration Project
safety to that of an employee protecting raised in the BLET Study. BLET Study discussed in this preamble (II. D.),
the point. Of course, not every operation at 44. rather than penalizing employees.
may be set up properly, working In response to these concerns, FRA BMWED’s comments may have captured
properly, or provide an equivalent level has specified additional requirements the labor position best when it
of safety. In order to facilitate the use of for technology aided point protection to expressed that there are underlying root
such technology, the final rule would be used by remote control locomotive causes for why accidents occur and thus
only permit such an operation to operations at highway-rail grade FRA should exercise maximum restraint
substitute for an employee’s direct crossings, pedestrian crossings, and in assessing civil penalties against
visual determination where the yard access crossings in Appendix D, II. individual employees. BMWED also
technology provides an equivalent level One, before conducting such operations, requested that FRA limit enforcement to
of protection to that of a direct visual diagnostic testing is required to individual railroad employees who
determination. See § 218.99(b)(3)(i). determine the suitability of the crossing commit the most egregious, gross and
Even with this clarification, the for permitting technology aided point willful violations, and that mistakes,
proposed rule raised the concern protection. The Crossing Diagnostic human error, and poor judgment do not
regarding whether previously published Team shall include representatives from rise to the level of the most egregious,
guidance should be incorporated in the the railroad, FRA, as well as the relevant gross and willful violations.
final rule. The BRS commented that State and local governments. Two, FRA wishes to clarify some apparent
there are too many questions regarding Appendix D specifically requires such misunderstandings. For instance, there
the safe use of remote cameras and that operations to be conducted only ‘‘at was a general idea expressed by labor
regulation is necessary to provide that crossings equipped with flashing lights, participants in the RSAC meetings that
cameras cannot be used when they are gates, and constant warning time train this final rule would be different than
not working as intended for any reason. detection systems;’’ thus, it is clear that the other Federal rail safety regulations
FRA believes the final rule addresses such operations are not permitted where because this one specifically allows
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BRS’s concern as the technology cannot there are passive warning systems or FRA to enforce the regulation against an
possibly afford an equivalent level of only some but not all of those active individual employee. This is incorrect.
protection if it is not working properly. warning systems listed. Three, the safety Each of FRA’s rail safety regulations
Furthermore, FRA has decided to of such operations is enhanced by permit enforcement against any person
incorporate the guidance as an appendix having the remote control operator view who violates a regulatory requirement or

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causes the violation of any requirement. FRA’s enforcement program would have increasing the number of situations in
See e.g., § 217.5 and § 218.9. ‘‘Person’’ is a negative effect on an employee’s which an employee is statutorily
broadly defined and includes any decision to remedy a mistake. Given protected from retaliation. For example,
employee, regardless of whether the FRA’s published enforcement policy, an paragraph (a) of Section 20109 makes it
employer is a railroad or not, or whether employee who recognizes unlawful to discriminate against
the employee is a manager, supervisor noncompliance and seeks to correct it employees when the discrimination is at
or other official. In other words, this has likely not acted willfully nor been all based on an ‘‘employee’s lawful,
final rule is not unique to FRA’s grossly negligent. Instead, an individual good faith act:’’ (1) To aid nearly any
regulations in that it permits FRA to civil penalty is warranted where an type of investigation whether initiated
take enforcement action against employee recognizes noncompliance by a governmental agency, Congress, or
individual persons for a failure to and does not act to correct it. Thus, another person with supervisory
comply including the assessment of FRA’s enforcement policy offers authority over the employee or the
civil penalties if the violation is willful employees an incentive to self-report authority to conduct such
or the issuance of a warning letter for a noncompliance as doing so would likely investigations; (2) ‘‘to refuse to violate
willful or nonwillful violation or a be considered a reason for FRA to or assist in the violation of any Federal
notice of proposed disqualification for a exercise its enforcement discretion not law, rule, or regulation relating to
willful or nonwillful violation that to take enforcement action against the railroad safety or security;’’ (3) to file a
demonstrates the person’s unfitness for individual. (Self-reporting is not, complaint, directly cause a railroad
safety-sensitive service. however, a defense to a potential safety or security enforcement
In response to BMWED’s concern that individual liability action, and self- proceeding to be brought, or testify in
FRA limit enforcement to individual reporting does not absolutely preclude such a proceeding; (4) ‘‘to notify, or
railroad employees who commit the FRA from taking enforcement action attempt to notify, the railroad carrier or
most egregious, gross and willful against an individual although FRA the Secretary of Transportation of a
violations, we note that this is very would consider self-reporting a strong work-related personal injury or work-
similar to FRA’s existing enforcement reason for mitigation of the civil related illness of an employee;’’ and (5)
policy which we would apply to penalty, disqualification order, or other to accurately report hours on duty
enforcement of this final rule. In both enforcement remedy.) . When each pursuant to the Hours of Service Laws.
parts 217 and 218, FRA already states railroad instructs its employees on its Rail employees looking to seek
that ‘‘[p]enalties may be assessed against operating rules, it should emphasize protection against alleged retaliation for
individuals only for willful violations, this incentive to self-report. In addition, refusing to violate or assist in the
and, where a grossly negligent violation we encourage each railroad to violation of one of the regulations in
or a pattern of repeated violations has reconsider its own discipline policy so part 218, subpart F, would likely do so
created an imminent hazard of death or that it does not discourage self-reporting under Section 20109(a)(2).
injury to persons, or has caused death of inadvertent noncompliance. Under Section 20109(b), the statute
or injury.’’ Id. FRA’s well-established prohibits a railroad employer from
policy with regard to the assessment of B. Good Faith Challenge—Legal Issues retaliating against an employee for: (1)
civil penalties against individuals will Both prior to and subsequent to the ‘‘Reporting, in good faith, a hazardous
apply here. See 49 CFR part 209, app. publication of the NPRM, AAR raised safety or security condition;’’ (2)
A. legal objections to FRA promulgating a refusing to work, under certain
Likewise, in the NPRM, FRA rule with a good faith challenge conditions, when a hazardous safety or
mentioned the concern that there may requirement as found in § 218.97. AAR’s security condition is confronted in the
be instances where an employee realizes objections essentially raised four main employee’s duties; and (3) refusing to
that he or she violated an operating rule issues: (1) Whether FRA has the authorize the use of any safety-related
but is afraid of the consequences of authority to issue a regulation requiring equipment, track or structures, if those
reporting the error—even when such good faith challenge procedures; (2) items are in a hazardous safety or
reporting would have the potential to whether FRA is preempted by statute security condition and certain other
prevent an accident or injury to other from enforcing regulatory good faith conditions are met. Unlike Section
workers or innocent bystanders. NTSB challenge procedures; (3) whether any 20109(a)(2), a refusal under Section
addressed this point in its report on the regulatory good faith challenge 20109(b) is not predicated on a refusal
Graniteville accident when it stated that procedures would contradict legislative to violate or assist in the alleged
a ‘‘significant civil penalty may have an intent by subjecting railroads to violation of any Federal law, rule, or
unintended impact on safety under multiple enforcement actions and regulation relating to railroad safety or
some circumstances. That is, an penalties; and (4) whether FRA is security. Another substantial change to
employee who, after leaving a work site, preempted by statute from requiring and Section 20109 is that the statute no
realizes that a switch has been left enforcing an anti-retaliatory provision longer states that disputes and
improperly lined may be made more as part of the good faith challenge grievances are to be handled under the
reluctant than in the past to requirements. Railway Labor Act (‘‘RLA’’), but instead
immediately report the error to train Some of AAR’s concerns are premised permits relief under this section to be
dispatchers. The threat of the severe fine on the legislative history and statutory initiated by an employee filing a
may prompt the employee to attempt a construction of 49 U.S.C. 20109 (Section complaint with the Secretary of Labor.
remedy (such as returning later to reline 20109), which offers rail employees Considering the substantial changes to
the switch) before the mistake can protections from retaliation when Section 20109, rail employees and
become known. As happened in the engaged in specified safety-related railroads are encouraged to carefully
September 2005 fatal collision in conduct. Meanwhile, Section 20109 was review the statute in order to
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Shepherd, Texas, such action on the amended between the deadline for respectively retain the protections
part of the employee could contribute to comments to the NPRM and this final afforded and comply with the law.
an accident that might otherwise have rule. Public Law 110–53, which became In consideration of the statutory
been avoidable.’’ NTSB/RAR–05/04 at effective on August 3, 2007, amendments to Section 20109, there is
46. FRA disagrees with NTSB that substantially amended Section 20109 by no longer a need for a regulatory anti-

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retaliation provision. This Congressional intent and that particular 20109.’’ This requirement in the
determination is further discussed in regulatory provision. regulation is intended to clarify that
this section under the title ‘‘4. Anti- AAR also argues that by legislating to FRA is not attempting to undermine the
Retaliation Provision.’’ We anticipate provide employees a right to refuse to Congressional intent or language found
that the elimination of the regulatory work in certain circumstances under in Section 20109. Instead, FRA is using
anti-retaliation provision, as well as Section 20109, Congress intended to the clear substantive rulemaking
other changes to the good faith preclude FRA from issuing a rule authority in railroad safety matters
challenge procedures made in response providing employees the right to found in Section 20103.
to various comments should allay most exercise a good faith challenge in
similar circumstances. It is important to 2. FRA’s Enforcement Authority
concerns, both legal and non-legal,
raised by AAR and other commenters. note that the good faith challenge in Another of AAR’s legal issues is the
Furthermore, for the following reasons, both the NPRM and this final rule is assertion that FRA’s proposed rule
FRA remains unconvinced that there are distinguished from the statutory refusal provides for resolution of disputes and
any legal impediments to promulgating to work as the regulatory challenge does grievances arising in situations already
a good faith challenge regulation. not permit an employee to refuse to covered by Section 20109. AAR argues
comply with the challenged directive that enforcing the good faith challenge
1. FRA’s Rulemaking Authority indefinitely, but instead only protects procedures proposed in the NPRM
One of AAR’s legal issues is the the employee from being required to do would contradict legislative intent to
assertion that FRA does not have the challenged task while the appeal preclude any agency enforcement of this
rulemaking authority to issue a good process afforded by the good faith issue and that Section 20109 provides
faith challenge provision. We disagree. challenge procedures is on-going. See similar employee protections and
FRA has authority to regulate railroad proposed § 218.97(b)(3), redesignated as requires disputes, claims and grievances
safety under 49 U.S.C. 20103 (Section § 218.97(c)(5)(iv) and (d)(2). The issue arising under that section to be handled
20103). More specifically, the language thus becomes whether Congress by the RLA. AAR further notes that a
of Section 20103(a) mandates that ‘‘[t]he intended to preempt this type of House of Representatives committee
Secretary of Transportation, as rulemaking by FRA. report in the legislative history for that
necessary, shall prescribe regulations In support of such an argument, AAR statute demonstrates that Congress
and issue orders for every area of asserts that FRA does not have the intended the RLA to ‘‘be the exclusive
railroad safety’’ (emphasis added). In authority to issue rules providing for the means for enforcing this section’’ and
addition, case law supports a broad good faith challenge for the same that it did ‘‘not intend for FRA to be
interpretation of an agency’s authorizing reasons that FRA may not directly involved in this area.’’ H.R. Rep. No.
statute. For example, in Whirlpool Corp. regulate hours of service. In particular, 1025, 96th Cong., 2d Sess., at 16 (1980).
v. Marshall, 445 U.S. 1 at 11, (1980), the AAR cites Atchison, Topeka and Santa AAR thus argues that the enforcement of
Supreme Court concluded that OSHA Fe Ry. v. Pena, 44 F.3d 437, 441–42 (7th the regulatory good faith challenge
‘‘clearly conform[ed] to the fundamental Cir. 1994), aff’d, Bhd. of Locomotive procedures is preempted by Section
objective of the [Occupational Safety Engineers v. Atchison, Topeka and 20109(c) and its legislative history. With
and Health] Act’’—the purpose of which Santa Fe Ry, 516 U.S. 152 (1996), in the recent amendments to Section
was ‘‘to prevent occupational deaths which the Seventh Circuit overturned 20109, AAR’s references to legislative
and serious injuries’’—when it FRA’s interpretation of the Hours of history have lost relevancy. However,
promulgated a regulation limiting Service Act, 45 U.S.C. 61–66 (‘‘Hours of FRA disagrees with AAR’s position
retaliation against employees that refuse Service Act’’). AAR stated that ‘‘[s]ince under the former statute and the version
to work because of a good faith belief Congress has established hours-of- effective August 3, 2007.
that they would be subjected to real service restrictions, FRA has no AAR confuses procedures for
danger of death or injury. Similarly, in rulemaking authority to establish its handling the initial exercise of a right
promulgating § 218.97, FRA is own hours-of-service requirements.’’ with procedures for handling a claim of
conforming to the objective of its AAR’s Comments at 3 (Dec. 11, 2006). retaliation ‘‘resulting from’’ the initial
authorizing statute (to improve railroad By analogy, AAR argues that as exercise of a right. Under the former
safety), by prescribing a regulation Congress has established specific statute, Section 20109(c) provided
which gives employees the right to standards and a specific process for an procedures for handling a claim of
challenge what may be an unsafe work employee to refuse work in Section retaliation as a consequence of the
assignment. Accordingly, FRA is 20109, FRA has no rulemaking authority initial refusal to work. That section
authorized to issue the rule’s good faith to establish its own requirements for an stated that ‘‘a dispute, grievance, or
challenge provision because it is employee to refuse work. claim arising under this section is
intended to improve railroad safety. AAR’s analogy to, and reliance on, subject to resolution under section 3 of
AAR does not challenge FRA’s Atchison is misplaced. FRA is neither the Railway Labor Act.’’ This language
authority to regulate railroad safety interpreting Section 20109 nor issuing refers to disputes, claims and grievances
under Section 20103. Instead, AAR rules that implement Section 20109. In resulting from a claim of retaliation as
claims that Section 20109 precludes that order to effectuate that point, the final a result of the employee’s exercise of the
authority as it relates to the good faith rule specifically requires in right under former Section 20109. The
challenge procedures, specifically § 218.97(b)(2) that a railroad or legislative history of that statute
singling out the proposed anti- employer’s good faith challenge written corroborates this assertion. A House of
retaliation provision previously found at procedures ‘‘shall indicate that the good Representatives Committee Report
§ 218.97(b)(2). Meanwhile, changes to faith challenge described in paragraph discussing the remedy under former
the rule and the statute have rendered (b)(1) is not intended to abridge any Section 20109 refers to discrimination
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AAR’s concerns moot. For instance, the rights or remedies available to the not involving discharge or suspension
final rule does not contain an anti- employee under a collective bargaining ‘‘such as assignment to undesirable
retaliation provision similar to the agreement, or any Federal law duties.’’ Since a dispute over an
proposed provision and, thus, there including, but not limited to, 29 U.S.C. assignment of undesirable duties refers
cannot be a conflict between 651 et seq., 6 U.S.C. 1142, or 49 U.S.C. to an act of retaliation rather than an

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exercise of the initial right to refuse provisions upon which an employee statutes protect employees from
work, this report lends support to the could file a complaint or a suit. The retaliation for ‘‘the employee’s lawful,
proposition that the language ‘‘dispute, election of remedies provision is good faith act done, or perceived by the
grievance, or claim arising under this intended to prevent, for example, an employer to have been done or about to
section’’ in former Section 20109(c) employee from getting double the be done * * * to refuse to violate or
refers to disputes resulting from the backpay, compensatory damages, and assist in the violation of any Federal
retaliation that occurred and not from punitive damages the employee is law, rule, or regulation relating to’’
the initial exercise of the right to refuse entitled to by seeking protection under either ‘‘public transportation safety or
to work. The same position is applicable both the Occupational Safety and Health security’’ or ‘‘railroad safety or security’’
to Section 20109 as recently amended. Act of 1970, 29 U.S.C. 660(c), and respectively. 6 U.S.C. 1142(a)(2) or 49
This rulemaking, on the other hand, Section 20109. We believe AAR is U.S.C. 20109(a)(2); see also 29 U.S.C.
only requires procedures for handling misinterpreting the election of remedies 660(c). These statutes require DOL to
the ‘‘initial’’ exercise of the good faith provision by confusing FRA’s investigate complaints of anti-retaliatory
challenge. These procedures include enforcement of penalties against an action and provide an array of remedies
such actions as not requiring the alleged bad actor versus an employee to an employee for violation of the law
challenging employee to complete the seeking remedies for him or herself. including reinstatement, backpay with
work until the good faith challenge is Furthermore, a railroad routinely may interest, compensatory damages, and
resolved and allowing the employee to face multiple demands for penalties or punitive damages up to $250,000. 49
document the challenge. The lawsuits in safety matters. Many times, U.S.C 20109(d)(3) and 6 U.S.C
procedures provide employers and when FRA enforces a regulation against 1142(d)(3). Consequently, the recently
employees with a process for handling a railroad for a set of facts, the railroad effective anti-retaliatory statutory
an employee’s good faith challenge. is privately sued based on the same set protections afforded to rail employees
Unlike Section 20109, the procedures of facts. This situation is no different would now protect an employee from
do not provide employers and and legally acceptable. retaliation under FRA’s good faith
employees with a process for handling challenge rule and it is thus
an employee’s claim of retaliation 4. Anti-Retaliation Provision
unnecessary for this final rule to require
resulting from his or her good faith AAR made several arguments that each railroad include a similar anti-
challenge. Therefore, FRA’s procedures suggesting that FRA is prohibited by retaliation provision in its good faith
for handling the good faith challenge do statute from including an anti- challenge procedures.
not contradict legislative intent as retaliation provision in the rule and, Any potential FRA enforcement of
applied to this issue. although FRA disagrees with AAR’s anti-retaliation under the good faith
legal conclusion, the proposed anti- challenge regulation would likely only
3. Multiple Enforcement Actions retaliation provision found in add a nominal deterrent effect given the
AAR argues that the good faith § 218.97(b)(2) of the NPRM has not been substantial remedies employees may
challenge would contradict legislative retained in the final rule. FRA proposed seek directly against a defendant under
intent by subjecting railroads to an anti-retaliation provision that the employee protections statutes.
multiple enforcement actions and required each railroad’s good faith FRA’s enforcement authority is limited
penalties in situations where both the written procedures to provide that an to civil penalty assessments up to
statutory right to refuse work under employee making a good faith challenge $27,000 against employers and
Section 20109 and the regulatory right not be discharged or in any way individuals (see 49 U.S.C. 21301),
to a good faith challenge would apply. discriminated against for making the emergency orders, compliance orders
Assuming the employee chose to make challenge. In order for the good faith and agreements, and FRA’s other
a good faith challenge and then claimed challenge to achieve its intended statutorily granted enforcement
that he was consequently retaliated purpose, i.e., improve railroad safety, it authority. FRA does not have the
against, AAR argues that the employer is fundamental that an employee be authority to collect damages or back pay
would not only be subject to a civil protected from retaliation when holding on behalf of any employee, nor order a
penalty by the FRA under the regulation an employer or supervisor accountable. railroad to reverse itself on a claim of
but would also be subject to damages by In October 2006, when the NPRM was discharge, discrimination or other
the Department of Labor (‘‘DOL’’) for published, the Federal laws protecting retaliation. In consideration of these
violating Section 20109. AAR argues rail employees from retaliation were employee protection alternatives, FRA
that multiple penalties for the same more narrowly written than the recently has decided to remove the anti-
occurrence contradict legislative intent. amended statutory protections provided retaliatory provision from this rule
The statutory and legislative histories for in Section 20109; consequently, rather than try to duplicate an
of both the former and current versions when the NPRM was published, FRA investigation into alleged anti-
of Section 20109 do not appear to was concerned that there could be retaliatory acts or omissions that an
support AAR’s claim that multiple multiple scenarios where an employee employee will certainly want to pursue
penalties are impermissible. While could raise a good faith challenge and under a collective bargaining agreement,
former 49 U.S.C. 20109(d), current 49 not otherwise be legally protected from with DOL, or in another forum.
U.S.C. 20109(e), and H.R. Report No. employer retaliation. Given the changed playing field for
1025 state that employees may not seek Given the statutory amendments Federal inquiries into alleged
protection under multiple provisions, effective August 3, 2007, it is unlikely retaliation, FRA is now assured that
they do not address the issue of that a rail employee, whether working claims of retaliation will be adequately
preventing employers from facing for a publicly-owned railroad, a investigated and remedied by another
multiple penalties. The statutory privately-owned railroad, or a contractor Federal agency. FRA has already held
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‘‘election of remedies’’ provision is or subcontractor of either type of discussions with DOL on ways to
intended to protect an employer from railroad, would not be protected from integrate FRA’s safety program with
having to pay the same types of damages retaliation under either Section 20109 or DOL’s whistleblower protection
to an employee multiple times just 6 U.S.C. 1142, which was also enacted program. For example, FRA’s employees
because there are multiple statutory in Public Law 110–53. These two will be trained to recognize when an

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employee has alleged retaliation so that to be preempted because there was no eliminate or reduce an essentially local
FRA may inform employees of their regulation covering the subject matter. safety or security hazard that is not
basic rights and refer such employees to While FRA disagreed with AAJ’s incompatible with a Federal law,
DOL. FRA anticipates taking other comments, AAJ’s comments have been regulation, or order and that does not
action to inform employees of the rendered moot by enactment of Pub. L. unreasonably burden interstate
statutory protections, such as providing No.110–53, discussed below. commerce. Section 20106 permits State
a link to DOL’s Web site from FRA’s Normal State negligence standards tort actions arising from events or
Web site and reminding employee apply where there is no Federal action activities occurring on or after January
complainants of the statutory covering the subject matter. In Pub. L. 18, 2002, for the following: (a) A
protection. No.110–53, Congress recently clarified violation of the Federal standard of care
the availability of State law causes of established by regulation or order issued
C. Preemptive Effect action under section 20106 where there by the Secretary of Transportation (with
The American Association for Justice is Federal action covering the subject respect to railroad safety, such as these
(AAJ) commented that FRA had matter. As amended, 49 U.S.C. 20106 regulations) or the Secretary of
impermissibly broadened the scope of provides that issuance of these Homeland Security (with respect to
preemption under 49 U.S.C. 20106. AAJ regulations preempts any State law, railroad security); (b) a party’s violation
objected to FRA’s discussion in the regulation, or order covering the same of, or failure to comply with, its own
preamble of the NPRM regarding 49 CFR subject matter, except an additional or plan, rule, or standard that it created
217.2 and 49 CFR 218.4. FRA’s more stringent law, regulation, or order pursuant to a regulation or order issued
discussion of each of these sections was that is necessary to eliminate or reduce by either of the two Secretaries; and (c)
identical, providing that: an essentially local railroad safety or a party’s violation of a State standard
This section informs the public of FRA’s railroad security hazard; that is not that is necessary to eliminate or reduce
intention and views on the preemptive effect incompatible with a law, regulation, or an essentially local safety or security
of the rule. The preemptive effect of this rule order of the United States Government; hazard, is not incompatible with a law,
is broad, as its purpose is to create a uniform and that does not unreasonably burden regulation, or order of the United States
national standard. Section 20106 of Title 49 interstate commerce. Section 20106 Government, and does not unreasonably
of the United States Code provides that all permits State tort actions arising from
regulations prescribed by the Secretary
burden interstate commerce. Nothing in
events or activities occurring on or after section 20106 creates a Federal cause of
related to railroad safety preempt any State January 18, 2002, for the following: (a)
law, regulation, or order covering the same action on behalf of an injured party or
A violation of the Federal standard of confers Federal question jurisdiction for
subject matter, except a provision necessary
to eliminate or reduce an essentially local care established by regulation or order such State law causes of action. The
safety hazard that is not incompatible with a issued the Secretary of Transportation NPRM language has been amended to
Federal law, regulation, or order and that (with respect to railroad safety, such as reflect the changes made to Section
does not unreasonably burden interstate these regulations) or the Secretary of 20106.
commerce. Exceptions would be rare. In Homeland Security (with respect to
general, 49 U.S.C. 20106 will preempt any Only one comment addressed this
railroad security); (b) a party’s violation
State law—whether statutory or common paragraph and that comment has been
of, or failure to comply with, its own
law—and any State regulation, rule, or order, discussed in the preamble. See IV.
plan, rule, or standard that it created
that concerns the same subject matter as the General Comments/Major Issues, C.
regulations in this rule. 71 FR 60372 at 60382
pursuant to a regulation or order issued
by either of the two Secretaries; and (c) Preemptive Effect.
and 60386.
a party’s violation of a State standard Section 217.4 Definitions
AAJ specifically objected to FRA’s that is necessary to eliminate or reduce
assertion that the preemptive effect of an essentially local safety or security FRA has added a definition of
the rule is broad, that exceptions would hazard, is not incompatible with a law, Associate Administrator for Safety to
be rare, and that § 20106 preempts regulation, or order of the United States this section that is consistent with other
common law claims. In support of its Government, and does not unreasonably definitions of this term in this chapter.
position that these assertions amounted burden interstate commerce. Nothing in The purpose of including this definition
to an expansion of preemption, AAJ section 20106 creates a Federal cause of is to identify an official who would have
cited In re Soo Line R. Co. Derailment action on behalf of an injured party or the authority to require amendments to
of January 18, 2002, 2006 WL 1153359, confers Federal question jurisdiction for programs of operational tests and
an unreported Minnesota state court such State law causes of action. inspections. FRA did not receive any
decision. In that decision, the court comments related to this definition.
found for various reasons that plaintiffs’ V. Section-by-Section Analysis FRA has added a definition of
claims were not preempted. Some were Part 217—[Amended] qualified to this section. The need for
not preempted, according to the court, this definition arose from the new
because although Federal regulations Section 217.2 Preemptive Effect requirements for railroad testing officers
covered the subject matter of the claims, This section informs the public of in § 217.9. As further explained in the
the conditions at the location at the time FRA’s intention and views on the analysis for that section, it is not
of the derailment constituted an preemptive effect of the rule. The acceptable for a railroad testing officer
essentially local safety hazard. Others preemptive effect of this rule is broad, to be monitoring or instructing
were not preempted, the court said, as its purpose is to create a uniform employees without being instructed,
because the Federal regulations covering national standard. Section 20106 of trained and examined, i.e., qualified, on
the subject matter of the claims were Title 49 of the United States Code the railroad’s operating rules and the
violated. A third category of claims were provides that all regulations prescribed tests the officer is expected to perform;
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found not to be preempted because the by the Secretary related to railroad thus, FRA is requiring such
regulations alleged to cover the subject safety preempt any State law, qualification. A person cannot be
matter of the claims were deemed by the regulation, or order covering the same considered qualified unless he or she
court not specific enough to do so, and subject matter, except an additional or has successfully completed all
a final group of claims were found not more stringent provision necessary to ‘‘instruction, training, and examination’’

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programs required by both the railroad the related operating rules and correlate and BLET expressed support for the
and this part. with a decrease in such accidents. concept of requiring railroad testing
The definition of ‘‘qualified’’ is Paragraph (b) is added to this section officers to be qualified on operating
modeled after the definition used in to establish new responsibilities for both rules, the testing program and
§ 240.7 in this chapter and should have railroads and those railroad officers who conducting operational tests. AAR
the same meaning despite some slight conduct operational tests and requested a ‘‘grandfather provision’’ that
differences. The phrase ‘‘training and inspections, i.e., railroad testing officers. would allow current testing officers to
testing’’ has been replaced by FRA inspections and investigations continue conducting tests for ninety
‘‘instruction, training, and examination’’ have revealed railroad testing officers days after the effective date of the rule
to more thoroughly reflect the who lack the fundamental knowledge to before records would need to be kept
educational aspects of the requirements perform adequate tests and inspections. that these testing officers were qualified
for a qualified person. The definition In order for these officers to be able to in accordance with paragraph (b)(2).
does not contain the word do a proper job, they must know the Similarly, APTA requested that each
‘‘appropriate’’ prior to the educational railroad’s operating rules, how the tests railroad have until December 21, 2008,
aspects so as to emphasize that the they will conduct fit into the railroad’s to qualify its railroad testing officers on
educational aspects of qualifying a testing program, and how to conduct a the operational testing program. In the
person are mandatory, not discretionary. proper test. AAR and APTA NPRM, FRA expressed disagreement
A word choice was made to substitute recommended amending paragraph with the need for such a grandfather
the term ‘‘successfully completed’’ for (b)(1)(iii) because they believe this provision. However, based on the
the word ‘‘passed.’’ The definition paragraph might be wrongly interpreted comments and further consideration of
added to part 217 is the same definition to require field training on every the qualification and recordkeeping
added to part 218, subpart F. The operational test an officer might be requirements, FRA will not require
relevant comments FRA received authorized to conduct. FRA does not compliance with this paragraph until
pertained to the proposed requirements agree that changing ‘‘as necessary to July 1, 2008, although we encourage
in § 217.9 and not the definition itself. achieve proficiency’’ to ‘‘when each railroad to attempt to comply
necessary to achieve proficiency’’ earlier.
Section 217.9 Program of Operational changes the meaning, as AAR and
Tests and Inspections; Recordkeeping FRA does not consider the
APTA prefer. We also disagree with
requirements of paragraph (b) to be
AAR’s interpretation of the proposed,
FRA is amending and adding onerous. Each railroad should already
and now final, paragraph. It is
paragraphs to this section. Although not maintain an accessible record showing
unnecessary for every railroad testing
every existing paragraph is being when each testing officer was last
officer to be qualified and receive field
amended, FRA is reprinting the entire qualified on the railroad’s operating
training on every conceivable
section to make it easier for readers to rules in accordance with paragraph
operational test. Experience can
follow. (b)(1)(i). It is contrary to logic that a
substitute for field training, as long as
FRA’s amendment to paragraph (a) the person is able to conduct an railroad would allow a person to
would clarify that the requirement to acceptable test. In addition, a railroad become a railroad testing officer without
conduct operational tests and testing officer does not need to receive ensuring that the person is qualified on
inspections specifically include tests field training on an operational test that the operational testing program
and inspections sufficient to verify the officer will not be asked to conduct. requirements and procedures relevant to
compliance with the requirements of Of course, if an officer who conducts an tests and inspections the testing officer
subpart F of part 218 of this chapter. improperly executed test is found to would be expected to conduct. We do
The proposed and final rules identify lack relevant experience conducting not understand how a person could
certain operating rules with which such a test and any field training on possibly do a testing officer’s job if the
noncompliance has led to an increase in how to conduct such a proper test, FRA person lacked sufficient knowledge of
human factor-caused accidents. Subpart would consider the event to be a the railroad’s testing program such that
F of part 218 requires that each railroad violation of the requirement. That said, the person could not conduct an
have in effect certain operating rules FRA recognizes that some tests and adequate test or inspection. With that
and that each railroad officer, supervisor inspections are so simple that no understanding, FRA would not expect
and employee uphold and comply with particular experience or training should that a great degree of new training is
those rules. As the operating rules be necessary; a railroad will need to use necessary, nor that it would be
identified in subpart F of part 218 are discretion and make training decisions burdensome to create a record. APTA
designed to address the most frequently on a case-by-case basis if it chooses not recommended that FRA relax the record
caused human factor accidents, FRA’s to train its railroad testing officers on retention requirements for
amendment to paragraph (a) requires each operational test. Paragraph ‘‘grandfathered’’ or existing testing
that each railroad periodically conduct (b)(1)(iv) requires that railroad testing officers. In the alternative, we suggest
operational tests and inspections to officers conduct operational tests in that if a railroad has not previously kept
determine the extent of compliance with accordance with the railroad’s program a record of whether an officer is
its code of operating rules, timetables, for such tests and inspections. A test qualified on the operational testing
and timetable special instructions, that is incompetently executed should program, that the railroad create a short
specifically including tests and not count towards compliance with a survey which would allow an officer to
inspections sufficient to verify railroad’s program of operational tests acknowledge whether the officer
compliance with the requirements of and inspections. Finally, this paragraph considers himself/herself qualified on
subpart F of part 218 of this chapter, in requires written records documenting the various aspects of the program, as
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accordance with a written program as that each railroad testing officer was well as qualified (either through
required by paragraph (c) of this section. properly qualified and that such records experience or prior instruction, training,
The program’s increased focus on be made available to FRA upon request. and examination) on the various types
human factor-caused accident FRA received several comments with of tests and inspections that the officer
prevention should direct awareness to regard to proposed paragraph (b). BRS may be asked to conduct. Meanwhile,

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FRA acknowledges that each railroad conditions on the railroad. It has also part 218, subpart F. It may be that
must qualify its railroad testing officers been amended, so that on or after July railroads would like the flexibility to
on any amended or added operating 1, 2008, each railroad shall be required change the minimum number of tests in
rules that seek to conform with part 218, to amend its program to ‘‘particularly periods less than a year, i.e., monthly,
subpart F of this chapter, and any emphasize those operating rules that quarterly, or six-month intervals. FRA
corresponding changes to the railroad’s cause or are likely to cause the most recognizes that, from time-to-time, a
operational testing program by July 1, accidents or incidents, such as those railroad may have a reduction in
2008; however, as most of these new accidents or incidents identified in the business, a reduction in the number of
Federal requirements are already similar quarterly reviews, six month reviews, operating employees, a reduction in
to existing operating rules on the vast and the annual summaries as required employee work hours, or another factor
majority of railroads, we do not under paragraphs (e) and (f), as that reduces the need to conduct as
anticipate that this additional training applicable.’’ Thus, FRA expects that many operational tests as it set forth in
will be extensive. Except for adding this each railroad would conduct a its operational testing program. When
applicability date, the final version of significant number of tests and such factors occur, a railroad should
paragraph (b) is the same as the version inspections directed at addressing simply amend its program and create a
proposed. localized problems with compliance, record explaining the reason for the
FRA has moved paragraph (b) to (c) such as those identified on a division, reduction in the amount of minimum
and added two new requirements found problems identified on a system-wide tests. In that way, when FRA audits the
at (c)(1) and (c)(5). Regarding the two basis, and leading causes of human program, we can readily deduce why
new requirements, FRA has factor-caused accidents nationwide, the railroad has reduced the minimum
implemented a scheme that requires such as those identified through this number of tests to be conducted, decide
each railroad to amend the existing final rule. whether the reasons are valid, and
program of operational tests and notify the railroad if we disapprove of
In order to gain some specificity in
inspections with the purpose of the action taken pursuant to paragraph
each railroad’s program, paragraph (c)(1)
requiring railroads to do a better job of (i).
also requires ‘‘a minimum number of
focusing their tests and inspections on Paragraph (c)(5) adds a new
tests per year that cover the
those types of operating rules that either requirement that, on or after July 1,
requirements of part 218, subpart F of
cause the most human factor-caused 2008, the program show the railroad’s
this chapter.’’ FRA is reluctant to state
accidents nationwide or are identified designation of an officer to manage the
as problematic on the particular a percentage or specific number per program at each level of responsibility
railroad’s division or system. At a number of employee work hours as each (division or system, as applicable). The
minimum, FRA expects railroads to test railroad may have particular operating officer may be designated either by
and inspect for those operating rules rules it wishes to emphasize to a greater name or job title, as long as the
identified as problematic in the degree than the next; however, the designation clearly identifies a
quarterly or six month reviews, i.e., objective in including this language is to responsible person that FRA can contact
those operating rules violations that encourage sufficient testing in these when FRA audits the program. The
have recently caused accidents or critical areas to verify good compliance officer shall also have oversight
incidents on the division or system- by railroad operating employees and to responsibility to ensure that the
wide. We also expect railroads to help establish the expectation that there program is being implemented properly
regularly spot-check for compliance will be compliance with those rules. across each division and system-wide.
with those operating rules that lead to FRA would be critical of a program that FRA’s expectation is that this officer
accidents and incidents nationwide, placed the majority of its emphasis on will at least manage the program to
even if the railroad has not specifically enforcing operating rules that are not ensure that the overall direction of the
encountered any recent incidents. As leading causes of accidents/incidents. program is sound. This designated
mentioned in the SUPPLEMENTARY The requirement for a specific minimum officer would be expected to take an
INFORMATION section under number of such tests per year follows active role in ensuring that divisions
‘‘Development of the NPRM,’’ the from such a requirement imposed in EO and the entire system are meeting
verification through testing process does 24, albeit EO 24 covered a smaller program requirements and ordering
not always work well because during subset of the operating rules FRA is changes when expectations are not met.
some periods of disruption related to covering in part 218, subpart F. AAR To the degree that a system-level officer
organizational or personnel changes, requested that the rule allow a railroad can identify a division, or a specific
some railroads do not perform to specify in its program ‘‘a minimum railroad testing officer, that is failing to
operational tests that address the root percentage of tests per year’’ that cover appropriately direct efforts, the
cause of human factor accidents. At the requirements of part 218, subpart F designated officer is expected to take
worst, administration of the program of this chapter, as opposed to a just ‘‘a corrective action. In order to ensure that
may be reduced to a numbers-generating minimum number of tests per year.’’ the railroad’s testing officers are
exercise, and, consequently, on portions AAR’s comment was somewhat unclear properly directing their efforts to reduce
of the railroad, officers may conduct in that it did not specify how the accidents/incidents, the designated
relatively few meaningful tests. Clearly, percentage might be calculated; we officer or officers will need to make
FRA intends for the program of assume that AAR means a percentage of adjustments to the implementation of
operational tests and inspections to be the total number of operational tests to the program based on any reviews that
meaningful and the amendments are be performed in a given year will cover might be required in paragraph (e), as
intended to forcefully move lagging part 218, subpart F requirements. FRA well as the annual summary produced
railroads to produce more meaningful is not adopting AAR’s suggestion as we in accordance with former paragraph
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tests and inspections. do not understand why a railroad that (d), which has been redesignated as
Paragraph (c)(1) contains the existing can identify a minimum number of total paragraph (f).
requirement that the program shall operational tests per year would have Additionally, former paragraph (b)(6)
provide for operational testing and trouble identifying a minimum number has been redesignated as paragraph
inspection under the various operating of tests that cover the requirements of (c)(7) without any changes from the

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prior existing rule. Former paragraph (c) this meeting are in the docket of this review are too important to postpone for
has been redesignated as paragraph (d) proceeding) APTA explained that many a year.
also without change. of its member railroads do not keep For the major freight railroads, the
Paragraph (e) adds requirements for accident/incident data and/or quarterly review is to be developed and
periodic reviews for any railroad with at operational testing data electronically conducted at the division level unless
least 400,000 total employee work hours and, thus, conducting periodic reviews no division headquarters, or its
annually. FRA has decided to provide greater than annually would create a equivalent, exists. Most larger railroads
each Class I railroad (including the substantial burden for those railroads have created division headquarters (see
National Railroad Passenger that could not simply run a report from current definition in § 217.4 of this part)
Corporation) until July 1, 2008 to a computer. In addition, APTA members to manage portions of the railroad and,
comply with this paragraph and, the reminded FRA that a commuter certainly, railroads that have divisions
remaining railroads to which this railroad’s budget is dependant on the do so because it is more efficient. That
paragraph applies, shall comply with an generosity of local and state is, it is easier for an officer at a division
applicability date of January 1, 2009. governments, which may not want to headquarters to know what safety issues
The NPRM only would have provided upgrade computers and software which are problematic in his or her division
until the effective date of the rule to would permit quicker and more efficient than an officer of a large railroad at the
comply with this section and FRA accident/incident reviews. Passenger system level.
decided to heed the concerns raised railroads are generally more stable in AAR asserted in its comments an
during the RSAC working group their organizations and experience overall objection to paragraph (e) as it
meetings that the effective date of the greater continuity with respect to deems the reviews and recordkeeping
rule would not provide sufficient time staffing at the line officer level (where requirements of this section as ‘‘micro-
for each railroad to implement the many problems often develop). management’’and ‘‘command-and-
reviews required by this paragraph. control regulation at its worst.’’ AAR
FRA has decided to exclude freight With regard to six month reviews, maintains that monthly, quarterly, and
railroads that have less than 400,000 however, there is a definite benefit for six-month reviews are not typically
total employee work hours annually Amtrak and the commuter railroads to conducted by freight railroads as FRA
from conducting periodic reviews and conduct a thorough system level review asserted in its proposed rule and that
analyses as provided in paragraph (e)(1) to achieve some degree of FRA is wrong to maintain that it is a
because only 135 smaller railroads that accountability. Meaningful reviews best practice for freight railroads to
meet this criterion reported any human should help drive proper adjust its program of tests and
factor caused rail accidents, and of those implementation of the program of inspections based on one quarter’s
135 that reported such accidents, only operational tests and inspections—thus worth of data. Furthermore, AAR asserts
20 railroads reported five (5) or more driving down the number of accidents/ that even if some railroads voluntarily
human factor caused rail accidents incidents attributable to human factors. conducted the same types of reviews
during the years 2002 through 2005. APTA explained in its comments that without regulation, FRA is not justified
During this four year period, these 135 there are funding and development to impose this ‘‘regulatory straitjacket,
smaller railroads experienced 334 issues that will require a period of with the formality and recordkeeping
human factor caused rail accidents training on these new regulations and that are byproducts of regulatory
amounting to 7 percent of all human any new automated reporting system requirements,’’ on each railroad.
factor caused rail accidents. It should that is created in response to the rule; FRA appreciates the comments of
also be considered that there are almost consequently, APTA requested 12 AAR with regard to paragraph (e) and
600 smaller railroads that fit this months to implement the first six-month certainly has given AAR’s counterpoint
criterion and yet only 135 reported any review under paragraph (e)(2). FRA has due consideration. The main focus of
human factor caused rail accidents at decided to deny APTA’s request to this rule is to reduce the number of
all. On that basis, FRA is excepting the delay implementation of the six-month human factor caused accidents, and
smallest railroads, based on the less review for a year. FRA does not agree FRA’s experience has been that one way
than 400,000 employee work hours with APTA that the six-month review to do that is to impose these types of
threshold, from the monthly and requires a ‘‘new automated reporting review requirements which force
quarterly reviews. Of course, if FRA system’’ for any railroad that does not needed improvements on a railroad’s
accumulates evidence to suggest that already have one up and running. The operational testing and inspection
railroads with less than 400,000 records and reviews required by this program. Prior to the publication of this
employee work hours are experiencing section could be maintained by old- rule, when FRA has identified
a significant number of human factor fashioned written records, and the significant problems with such a
caused accidents, FRA will consider analysis required could be completed program and there has also been a
whether to initiate a new rulemaking without the aid of a computer or with correlation of noncompliance with
revising this final rule. software readily available in stores now. important safety laws, FRA has shown
Similarly, Amtrak and the railroads That said, we agree that an automated some restraint in enforcement while
providing commuter service in a system would likely provide for more working with some railroads in trying to
metropolitan or suburban area also efficiently completed analysis. FRA, improve compliance. On a case-by-case
experience a relatively low number of however, has not required such basis, FRA has entered into a voluntary
human factor caused rail accidents automation. Finally, FRA has not compliance agreement with a railroad so
compared to the freight railroads with excepted even the smallest commuter that it is clear what enforcement action
greater than 400,000 employee work railroads from the requirement that FRA will take if the operational testing
hours annually. During the years 2002– reviews be conducted, because in FRA’s and monitoring changes requested by
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2004, Amtrak and the commuter experience no railroad is free from the FRA are not completed by a specific
railroads experienced a total of 270 risk that good discipline will erode over deadline.
accidents attributed to human factor time, and the consequences of a Although voluntary compliance
causes. At a meeting held with members passenger train accident can be very agreements are typically effective in
of APTA on April 27, 2006, (notes of serious indeed. The benefits of the improving safety on a particular railroad

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or division, FRA’s experience has been formerly referred to as the monthly what, where, when, why, and how
that the problems that trigger the need review, but is now part of the quarterly often. For accident/incident data, these
for such agreements are fairly common review, is not expected to be an onerous questions would involve identifying all
in the industry. The regulatory approach task. It is merely a quick written tally of the employees involved in the accident/
in this rule is significantly more the number of tests performed by each incident, a description of the accident/
efficient than entering into tens or railroad testing officer, including the incident, the location where it occurred,
hundreds of individual agreements. The railroad operating rules tested for, and the time it occurred, the root cause and
implementation of this rule will a determination made whether the tally any secondary causes, and whether the
effectively require the implementation shows adherence to the written program division or system has suffered this type
of best practices that should aid in the of operational tests and inspections. of accident/incident often, sometimes or
reduction of accidents/incidents before When this type of review reveals never. For operational test data, the
FRA is able to pinpoint any problem noncompliance with the program, the issues include identifying the railroad
associated with a particular railroad’s designated officer is required to make testing officer(s) responsible for the
system of tests and inspections. Rather any necessary adjustments to the tests particular location, whether the testing
than changing one railroad, or one and inspections required of railroad officers are testing for the operating
division on a large railroad, at a time, officers for the subsequent period(s). rules responsible for any recent
this rule will require all but the smallest The designated railroad officer in accidents/incidents, whether the testing
freight railroads to place greater paragraph (c)(5) may or may not be the officers conducted any tests where any
emphasis on human factor caused officer who performs this review, but recent accidents/incidents occurred,
accidents in each operational test and this designated railroad officer would be whether the testing officers are testing
inspection program. required to ensure that the quarterly during the hours of highest incident
AAR also commented that FRA review is properly completed. As FRA rates, whether any railroad officers are
should not require that a designated would expect that this aspect of the briefing the employees as to the root or
officer for each division shall be the sole quarterly review would be derived from secondary causes and the fact that the
officer who may perform the required data collected at the division level, FRA railroad will be testing for compliance,
monthly and quarterly reviews of tests does not anticipate any problems for a and how often the officers are
and inspections, if a railroad has division officer producing this conducting any follow-up testing and
divisions. AAR suggests that the rule information in a quarterly review. job briefings.
permit each railroad the flexibility to FRA is mandating a comprehensive FRA believes there are at least five
choose whether an officer at quarterly review for freight railroads other types of pertinent safety data that
headquarters can perform the required under paragraph (e)(1)(i). In addition to should be included in a proper quarterly
reviews. FRA is rejecting AAR’s the scorecard for each railroad testing review. One, if FRA has conducted any
comment as it applies to the quarterly officer (i.e., the formerly proposed recent inspections, the railroad should
review. In order to comply with the monthly review), it shall include a check whether its officers’ tests reflect
requirements for the quarterly review ‘‘review of the [railroad’s] accident/ FRA’s findings. Two, if an employee is
under paragraph (e)(1)(i), an officer incident data, the results of prior involved in an accident/incident, the
would need to have a detailed operational tests and inspections, and employee’s safety record may provide
knowledge of the operation. It is our other pertinent safety data for that insight. Three, the railroad should
experience that railroads that have division or system to identify the determine if there is any correlation
divisions are too large for a person at the relevant operating rules related to those between the training or experience of
system headquarters to have the kind of accidents/incidents that occurred the local railroad testing officers and the
mastery over each division to conduct during the quarter.’’ The focus of the locations where accidents/incidents
the kind of in-depth analysis required of quarterly review is to identify those have occurred. Four, a railroad should
the quarterly review. Where FRA has operating rules which pose the greatest similarly consider the extent to which
audited strong programs, division risk of being violated—which should employee experience plays a part in any
officers are conducting periodic analysis then be targeted for regular tests and given accident/incident. Fifth, a
of accidents/incidents at the division inspections. That is why FRA is railroad’s review should consider
level and making appropriate requiring that based upon the results of whether any operational conditions
adjustments at the division level as the quarterly review, the designated have recently changed that increased
remedial action. We are surprised at officer shall make any necessary the likelihood of either noncompliance
AAR’s comments because the divisions adjustments to the tests and inspections with the operating rules or accidents/
typically operate semi-autonomously required of railroad officers for the incidents. Special attention to all these
from system headquarters, albeit with subsequent period. The quarterly review details in the quarterly or six month
regular coordination on system-wide must be in writing and include the data review, as applicable, should lead a
matters. As a practical matter, if a upon which any conclusions are based. railroad to meaningful application of its
division headquarters exists, an officer In response to several comments, FRA written program of operational tests and
at the division level will be in the best has clarified that any review, record or inspections with a greater potential for
position to perform the types of reviews other information required by this driving down the frequency and severity
required by the quarterly review. section to be in writing may be retained of accidents/incidents.
Meanwhile, FRA has responded to electronically pursuant to paragraph (g). Although it would be best if quarterly
AAR’s comment by deleting the FRA expects that in order to conduct reviews were completed immediately
requirement for a monthly review. a meaningful quarterly review, each following the end of each quarter, FRA
Instead, the review to determine railroad will review accident/incident is requiring completion no later than 30
whether each railroad testing officer is data, operational test data, and other days after the quarter has ended. We did
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conducting the minimum number of pertinent data. For example, a railroad not receive any negative comments
each type of test or inspection required should identify the relevant facts for regarding the 30 day period. FRA
by the railroad’s program will only be each category of data. The relevant facts originally considered requiring the
required on a quarterly basis, as are usually covered if a railroad can quarterly review in half that time but
opposed to a monthly basis. What was answer the questions signifying who, railroads participating at a Railroad

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Operating Rules Working Group passenger railroads are free to initiate the data used to create this report in an
meeting suggested that additional time more frequent reviews. For example, electronic database which makes it
would be needed for those railroads that paragraphs (e)(2)(i) and (ii) describe relatively simple to generate the
do not maintain their safety data reviews that are equivalent to the review required annual summary.
electronically. For those railroads that required for freight railroads on a Former paragraph (e) is redesignated
keep records electronically, FRA quarterly basis and certainly passenger paragraph (g) with one amendment. The
encourages quarterly reviews to take railroads may perform that review on a former rule specified that the railroad
place contemporaneously with the quarterly basis as well; however, the maintain a ‘‘desk-top’’ computer upon
conclusion of the quarter. Regardless of passenger railroads are required to which the railroad can retrieve data. As
how long it takes to complete the comply with those two requirements at laptop and notebook computers have
quarterly review, each division or least every six months. Paragraph become more common, and their
system should be prepared to redirect (e)(2)(iii) describes a review that is to be computing abilities now rival desk-top
its railroad testing officers in order to completed at least once every six models, there is no reason to restrict
appropriately react to any accidents/ months and is the equivalent of the six railroads from using any computer to
incidents of noncompliance during the month review required for freight retrieve records for FRA under this
previous quarter. Even where a division railroads. As it is required that the section.
or system has had a particularly safe passenger railroads conduct the same Proposed paragraph (h), which
quarter, railroad testing officers should reviews as the freight railroad with the suggested a requirement specifying that
be instructed to adjust the way in which exception of the timing of those reviews, railroads and individuals can be liable
they are conducting their tests so that the prior section-by-section analysis for falsifying or deliberately mutilating
employees cannot easily anticipate the description for each review is applicable records required by this section, has
types of tests to be conducted, nor the here. been deleted as unnecessary for two
dates and locations of such tests. Because FRA needs to be assured that reasons. One, if FRA has sufficient
Because freight railroads with divisions each railroad is complying with any evidence to prove that a railroad or
might find it difficult to do the system- required reviews, the regulation requires individual has falsified a program
wide six month review in only 30 days, that the reviews be retained for one year required under this section or a record
especially since the quarterly reviews after the end of the calendar year to kept for such a required program, then
might not be completed until the 30th which they relate and shall be made that railroad or individual could be
day, FRA has amended the proposed available to FRA upon request. FRA also cited by FRA for a willful violation of
rule by allowing freight railroads 60 encourages railroads to store these the underlying section. The penalty
days after the review period has ended records electronically, pursuant to assessed would be greater than a typical
to complete the six month review. paragraph (g), as long as the information civil penalty assessment. See 49 CFR
Passenger railroads with divisions are can be produced upon request. 217.5 and app. A to Part 217. Thus, even
not quite as large or complex that Former paragraph (d), which is with the deletion of this proposed
completion of the six month review redesignated as paragraph (f), is being paragraph, FRA retains the authority to
should take more than 30 days. amended in two respects. One assess civil penalties for falsification of
In paragraphs (e)(1)(ii) and (e)(2), six amendment is merely to change the the required records pertaining to this
month reviews are only required for term ‘‘manhours’’ to ‘‘employee work section. Two, the activity at issue is also
each Class I railroad, Amtrak, and each hours’’ as the latter is gender neutral. prohibited by criminal law. See, e.g., 49
railroad providing commuter service in The second amendment would clarify U.S.C. 21311. Consequently, FRA has
a metropolitan or suburban area. The that this requirement does not apply to decided to remove this paragraph from
basis for the requirement is that the ‘‘a railroad with less than 400,000 total’’ the final rule and would expect that the
identified freight railroads are so large employee work hours annually, as the existing criminal law and this final rule
that each would benefit from an officer, current rule accidentally fails to include will provide sufficient disincentives for
likely at the system headquarters, who the qualification of the time period. railroads and individuals to complete
is identifiable by name or job title, who In the NPRM, FRA questioned the the programs and records required
will oversee whether each division, line necessity of retaining the annual under this part without falsifying,
or segment is complying with the summary requirement in paragraph (f) mutilating, or destroying such a record.
program of operational tests and and FRA received several comments, Proposed paragraph (i), which has
inspections. It is expected that such an including from AAR, APTA, and UTU, been redesignated as paragraph (h)
officer would have the authority to supporting the elimination of the annual requires that FRA have some specific
intervene in division, line or segment summary on operational tests and oversight mechanism for disapproving a
operations to the extent that this officer inspections requirement. After further railroad’s program of operational tests
could order changes to the way consideration, FRA realizes that the and inspections. It also requires
divisions are implementing the annual review requires different minimum procedures and structure for
program. The purpose for such information than the other reviews and the review process. The paragraph
intervention would be to require certain that eliminating it would have a serious requires that the Associate
types of operational tests or inspections detrimental effect on FRA’s ability to Administrator for Safety only
based on observations made system- audit a railroad’s program. The annual disapprove programs required by this
wide that may not be apparent to each summary requires all but the smallest section for cause stated. As the
designated division officer armed only railroads to create a written summary of disapproval decision is made for cause,
with data from his or her own division. the number, type, and result of each it is significant for the railroad to
In the case of Amtrak and the operational test and inspection, stated understand exactly why FRA is
commuter railroads, paragraph (e)(2) according to operating divisions where disapproving the program; thus,
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requires reviews equivalent to those for applicable, that was conducted as notification of such disapproval will be
the freight railroads in paragraph (e)(1), required by paragraphs (a) and (c) of this made in writing and specify the basis
however all the reviews are to take place section. This written record may be kept for the disapproval decision. If the
at least every six months. Of course, in an electronic format pursuant to Associate Administrator for Safety
these are minimum requirements and paragraph (g). Generally, railroads keep disapproves the program, the railroad

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has 35 days from the date of the written comment, it requested that FRA recognizes that our definition of
notification of such disapproval to reconsider this approach and instead qualified might be deemed to lead to
either (1) amend its program and submit advocated that each railroad be required more extensive or rigorous instruction,
it to the Associate Administrator for to submit its operational tests and training, and examination than is
Safety for approval, or (2) provide a inspections program for FRA’s explicit currently in practice. While that might
written response in support of the approval. BLET’s reason for requiring a be a positive development, FRA
program to the Associate Administrator submission and approval process is that recognizes that there might be costs
for Safety. If the railroad chooses the employees need to be afforded no less involved with assuring the additional
second option to defend the allegedly than the highest degree of assurance that qualifications are met, and FRA has not
defective program, the Associate a railroad’s compliance monitoring is found a correlation between the lack of
Administrator for Safety will inform the appropriate if the employee can be held operating rules training in general and
railroad of FRA’s final decision in responsible for noncompliance. A accidents/incidents. FRA’s decision
writing. Although the rule is silent similar comment was raised by UTU in only requires such periodic instruction
regarding whether a railroad may the context that FRA should prohibit as it applies to those operating rules that
request an extension, FRA intends for testing officers from performing would be required by part 218, subpart
the Associate Administrator for Safety, operational tests that violate operating F because the rules set out in that
as the agency’s decision-maker, to have rules or endanger employees. While subpart do have a direct correlation to
the flexibility to decide procedural FRA appreciates these comments, we a substantial number of accidents/
issues, such as having the ability to are not adopting them for the following incidents and other noncompliance
grant or deny requests for extensions of reasons. Although FRA has found detected by FRA. See § 218.95(a)(5).
time, as the issues arise. The Associate deficiencies with some railroads’ FRA will consider implementing
Administrator for Safety renders a final programs from time-to-time, if a railroad another rulemaking if noncompliance
decision in writing which will specify has a program, it will typically contain with other operating rules are identified
the terms and conditions under which all the requirements necessary to be that are causing a significant number of
the program will be considered deemed approved. Most problems with accidents/incidents. Based on available
approved or disapproved. If the decision a program cannot be determined until information, the current requirement,
denies the railroad’s request in whole or an audit or investigation reveals that each railroad periodically instruct
in part, FRA intends for the railroad to inadequacies. Thus, a mandatory each employee on the meaning and
amend its program and submit it to the approval process is both a drain on the application of the railroad’s operating
Associate Administrator for Safety for agency’s resources and also unlikely to rules, appears to be sufficient. See
approval within 35 days of the final reveal many programmatic deficiencies. § 217.11.
decision as that is the period of time The best time to request a programmatic
Section 217.11 Program of Instruction
accorded for amending programs when change is when an inadequacy is
on Operating Rules; Recordkeeping;
a railroad chooses not to appeal the revealed. However, the NPRM did not
Electronic Recordkeeping
disapproval. Again, a railroad may provide for specific procedures for FRA
request an extension of time to amend to take place when an inadequacy was FRA did not propose any changes to
its program and submit it to the identified. The rule has been this section in the NPRM; however, after
Associate Administrator for Safety for strengthened to provide for specific the NPRM’s publication we realized that
approval, and FRA intends for the oversight authority vesting with the it contained a cross-cite to § 217.9(e)(1)
Associate Administrator for Safety to Associate Administrator for Safety. It is through (e)(5), which has been
have the flexibility to decide whether to also helpful to remember that FRA is redesignated as § 217.9(g)(1) through (5).
grant or deny such procedural requests. requiring railroad testing officers to This citation change is the only
Although enforcement action is always conduct tests and inspections in amendment to this section.
discretionary, FRA believes that accordance with a railroad’s program, Part 218—[Amended]
enforcement action is warranted when a and that it is implicit that an improperly
railroad fails to appropriately and conducted test shall not be considered Section 218.4 Preemptive Effect
timely amend its program; for this a valid test toward satisfying any This section informs the public of
reason, FRA is requiring in paragraph requirement under the program. FRA’s intention and views on the
(h)(2) that a failure to submit the In the proposed rule, FRA solicited preemptive effect of the rule. The
program with the necessary revisions to comments as to whether the final rule preemptive effect of this rule is broad,
the Associate Administrator for Safety should require each railroad to instruct as its purpose is to create a uniform
will be considered a failure to its employees on operating rules at least national standard. Section 20106 of
implement a program under this part. once every three years. BLET submitted Title 49 of the United States Code
The approach in paragraph (h) a comment supporting triennial provides that all regulations prescribed
recognizes that FRA will want to review qualification of employees on all by the Secretary related to railroad
such written programs during audits or Federalized operating rules. As BLET safety preempt any State law,
investigations and that FRA should have points out, adding this requirement regulation, or order covering the same
the authority to request changes to the would merely expand the proposal to subject matter, except an additional or
program if it does not meet the require each railroad to qualify its more stringent provision necessary to
minimum requirements of this rule. employees on Part 218, subpart F in this eliminate or reduce an essentially local
Although FRA retains the authority to chapter, and many employees are safety or security hazard that is not
review in detail each railroad’s program, already covered as locomotive engineers incompatible with a Federal law,
FRA is not requiring that each railroad are currently required to be qualified regulation, or order and that does not
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submit its program for prior review and every three years pursuant to unreasonably burden interstate
approval. Rather, FRA intends to review § 240.210(c) of this chapter. FRA would commerce. Section 20106 permits State
the programs of the major railroads over add that a triennial operating class is the tort actions arising from events or
a multi-year cycle to determine if they typical standard requirement on most activities occurring on or after January
are effective. In BLET’s written railroads today. However, FRA also 18, 2002, for the following: (a) A

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violation of the Federal standard of care the same track must be provided as and applied in a predictable manner.
established by regulation or order issued follows: A crew member with flagman’s Further, it must be understood that the
the Secretary of Transportation (with signals must immediately go back at rules may not be circumvented at the
respect to railroad safety, such as these least the distance prescribed by whim of a supervisor or employee to
regulations) or the Secretary of timetable or other instructions for the hasten completion of the work. The
Homeland Security (with respect to territory, place at least two torpedoes on rules in this subpart are intended to
railroad security); (b) a party’s violation the rail at least 100 feet apart and support these purposes.
of, or failure to comply with, its own display one lighted fusee.’’ The In addition, making these rules
plan, rule, or standard that it created language in italics has been deleted by mandatory from a Federal standpoint
pursuant to a regulation or order issued this final rule. Former paragraph provides an enforcement mechanism to
by either of the two Secretaries; and (c) (a)(1)(iv) states that ‘‘[w]hen required by discourage noncompliance.
a party’s violation of a State standard the railroad’s operating rules, a forward FRA is standardizing this small
that is necessary to eliminate or reduce crew member with flagman’s signals number of railroad operating rules by
an essentially local safety or security must protect the front of his train establishing minimum requirements.
hazard, is not incompatible with a law, against opposing movements by The minimum requirements are based
regulation, or order of the United States immediately going forward at least the on accepted best practices and rules
Government, and does not unreasonably distance prescribed by timetable or currently in use. Of course, railroads
burden interstate commerce. Nothing in other instructions for the territory may choose to prescribe additional or
section 20106 creates a Federal cause of placing at least two torpedoes on the more stringent requirements.
action on behalf of an injured party or rail at least 100 feet apart, displaying FRA received one comment regarding
confers Federal question jurisdiction for one lighted fusee, and remaining at that this section. AAR proposed that FRA
such State law causes of action. The location until recalled.’’ Again, the add a paragraph that exempts
NPRM language has been amended to language in italics has been deleted by employees subject to blue signal
reflect the changes made to Section this final rule. Elimination of the protection under subpart B of this
20106. chapter, or to employees moving
references to torpedoes does not
Only one comment addressed this equipment within the confines of a
eliminate the requirement that each
paragraph and that comment has been locomotive repair or servicing area, or a
railroad have in effect an operating rule
discussed in the preamble. See IV. car shop repair track area. FRA
that complies with the requirements in
General Comments/Major Issues, C. disagrees with AAR’s premise that
this section. Furthermore, FRA has
Preemptive Effect. employees performing these functions
made minor amendments to make the
do not need to be qualified on the
Section 218.5 Definitions regulatory language gender neutral.
requirements of this subpart. It is
FRA is amending the definition of Subpart F—Handling Equipment, absolutely imperative that all employees
flagman’s signals in order to eliminate Switches, and Fixed Derails operating a hand-operated switch or
a reference to ‘‘torpedoes.’’ Torpedoes fixed derail understand how to properly
Section 218.91 Purpose and Scope
are antiquated signaling devices which operate and determine the position of
have fallen into disuse in the industry. As previously explained in the such switches and derails. We do not
Likewise, we are amending § 218.37, supplementary information, FRA has share AAR’s belief that there is any
which refers to this definition and the identified that noncompliance with a conflict with the blue signal
placing of torpedoes when providing small number of railroad operating rules requirements of this chapter.
flag protection. has caused an inordinate percentage of Additionally, FRA did carve out one
FRA is also amending the definition total human factor caused accidents. exception under proposed
of locomotive to explain that this FRA’s purpose is first to establish clear § 218.103(g)(2)(a), redesignated as
particular definition of locomotive does and unambiguous procedures that will § 218.107(c)(1)(i), so that hand-operated
not apply to subpart F. The definition of provide for the safety of railroad crossover switches could be left out of
locomotive in this section is a more employees and the public. In the RSAC correspondence when used to provide
mechanically-minded definition than Working Group discussions that blue signal protection under § 218.27.
the definition contained in 49 CFR preceded the preparation of the FRA has also clarified in the title to
218.93. This definition continues to proposed rule, FRA noted significant this subpart, the purpose and scope
apply to the requirements in part 218, variation in basic safety procedures section, and in § 218.109, that this
with the exception of subpart F. followed on participating railroads. subpart applies to ‘‘fixed’’ derails and
Although some variation is necessary to does not apply to ‘‘portable derails.’’ In
Section 218.37 Flag Protection address local conditions, the presence of the NPRM, FRA did not distinguish
FRA is eliminating references to extensive joint operations in the railroad between the two general types of
‘‘torpedoes’’ as these are antiquated industry makes it essential that certain derails, i.e., fixed and portable. FRA is
signaling devices which have fallen into common procedures apply. Joint using the term ‘‘fixed derails’’ to
disuse in the industry. The former rule operations are not new to the railroad contrast it with derails that are portable.
required each railroad to have in effect industry, as evidenced by the historic Portable, or temporary, derails can
an operating rule which complies with role of terminal companies. However, easily be transported and applied at
this section, and thus contains the practice has more recently expanded different locations throughout the day in
references to the use of torpedoes, even through mergers and consequent awards order to protect workers and equipment
though the railroad could meet other of trackage rights and through the as needed. Fixed, or permanent, derails
flagging requirements without ever creation of hundreds of small railroads cannot be easily transported because
needing to carry or use torpedoes. In the that are often provided access to larger they are typically affixed to the track
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former section, there are two paragraphs railroad’s facilities to facilitate efficient structure in some manner. Fixed derails
that reference torpedoes. Former interchange of cars. are normally found prior to entering a
paragraph (a)(1)(iii) states, in part, that In order to ensure compliance with locomotive servicing area or car shop
‘‘[w]hen a train stops on main track, flag operating rules, it is essential that they repair area, where they are used to
protection against following trains on be consistent, commonly understood, protect workers in those areas from

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8464 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

encroachment by unauthorized FRA is adding a definition of maintenance-of-way equipment is


movements of rolling equipment. Fixed crossover because, while drafting this located such that the end of the
derails are also used on industry tracks final rule, we realized that the industry equipment is between the clearance
to prevent rolling equipment from has not settled on one common point and the switch points of the
unintentionally rolling out onto a main definition of the term. Some railroads switch leading to the track on which the
track. define the term crossover in their rule equipment is standing. The potential for
books as ‘‘a combination of two an accident is great when equipment is
Section 218.93 Definitions
switches that connect two adjacent left standing on a track in such a
The definitions in this section only tracks.’’ One railroad adds the following manner that a movement on an adjacent
have applicability to this subpart so it sentence to that definition: ‘‘When track would collide with it; this is
should be easier for the reader to locate lined, this switch combination allows especially true when the standing
each definition in this section rather movements to cross from one track to equipment is left so that it appears that
than in subpart A—General, § 218.5. the other.’’ Other railroads simply equipment might be able to pass by on
Several definitions are consistent with define a crossover as ‘‘a track the adjacent track. Equipment, or a
other definitions of these terms in this connection between two adjacent person riding a side of a car, on adjacent
chapter. These terms are Associate tracks.’’ Meanwhile, Christoper track could strike fouling equipment.
Administrator for Safety, employee, Schulte’s Dictionary of Railway Track This type of accident is usually a side-
locomotive, pedestrian crossing, Terms, (3d ed. 2003), defines a swipe type accident and the severity of
qualified, and roadway worker. In an crossover as ‘‘a pair or group of turnouts the accident depends on the factors
effort to be as clear as possible, FRA is which allows rolling stock and on-track involved; e.g., the factors determining
including definitions of these terms in equipment to cross from one track to severity include, but are not limited to,
this subpart for the benefit of anyone another.’’ Still another dictionary of the speed of the moving equipment, the
unfamiliar with these terms. railway terms, Don Dressel’s Railroad type of equipment struck, the contents
FRA is defining the term clearance Terminology, Definitions, & Slang, (4th of the cars struck, whether a person was
point because this term is necessary to ed.1994), defines a crossover as ‘‘two riding a car and whether an occupied
describe an important concept that is turnouts * * * connecting two nearby locomotive struck the equipment. The
used several times in this subpart. and usually parallel tracks.’’ FRA is issue of foul or fouling a track is
‘‘Clearance point’’ means the location aware that there are many variations of addressed in § 218.101 titled ‘‘Leaving
near a turnout beyond which it is unsafe track configurations that may resemble Rolling and On-Track Maintenance-of-
for passage by equipment or a person a crossover, or may fall generally within Way Equipment in the Clear,’’ because
riding the side of a car on an adjacent the parameters of one of the definitions certain scenarios of fouling are
track. While clearance points may be referenced above but, as a practical avoidable and FRA believes that each
identified by marks on the rail, signs, or matter, are not crossovers in the purest railroad should have an operating rule
other visible identifiers, these points are sense that FRA and most of the industry that prohibits this dangerous practice.
often referring to an approximate understand and intend the term to The final rule was amended from the
location that will need to be deduced by mean. Therefore, in the application of NPRM to clarify an issue raised during
an employee. Railroads shall implement this subpart, the term crossover applies the RSAC process. FRA was asked to
procedures for identifying such to a track connection between two clarify what it meant by the term ‘‘any
approximate locations and for waiting to adjacent, but not necessarily parallel, part of the equipment.’’ Some
line hand-operated switches away until tracks, consisting of two switches, commenters questioned whether FRA
equipment that has entered the track has which is intended to be used primarily would consider a high-and-wide load,
passed this point. See §§ 218.101(c) and for the purpose of crossing over from or a shifted load of lumber protruding
218.103(d). Without a definition of one track to another. Categorically from the side of a flat car, as ‘‘fouling’’
clearance point, it would be difficult to excluded from this application are track an adjacent track even though the end
define what is meant by ‘‘foul or fouling connections between adjacent tracks of the car might still be within the
a track.’’ Through the proper that, while they may physically permit clearance point of the switch. FRA’s
identification of clearance points, equipment to pass from one track to experience has been that when there are
employees can avoid collisions and another, are of sufficient length so as to high-and-wide or shifted loads,
personal injury to other employees be able to store or hold rolling railroads have implemented proper
riding the sides of cars. equipment on them, or to set out bad procedures for employees to take
The definitions for correspondence of order cars, or to store track equipment, appropriate action and address the
crossover switches and crossover are or for any other purpose than solely for safety concerns. The situation FRA
interrelated, and should be familiar to crossover movements. Of course, it is intends to address in this rule by
people working in the railroad industry. possible to have a crossover that holds defining ‘‘foul and fouling’’ occurs
FRA defined the term ‘‘correspondence just a few pieces of rolling equipment when the end of a car itself is fouling
of crossover switches’’ in the NPRM and and that is not typically used for and struck by a movement on an
no comments were filed suggesting that allowing other movements to pass or adjacent track; the reason for FRA’s
the industry was confused by the term. used for storage, but yet is used for such narrower focus is because that situation
Crossover switches are considered in purpose. In response to these atypical is the type of accident described
correspondence under two conditions: situations, FRA intends to use its universally in the accident/incident
(1) When it is desired to travel from one enforcement discretion on a case by case reports filed with FRA that are
adjacent track to another, both crossover basis. categorized as ‘‘cars left foul’’ or ‘‘car(s)
switches would need to be lined for the A definition for foul or fouling a track shoved out and left out of clear.’’ By
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crossover movement; or (2) if no is provided because this term is referring to the end of the equipment,
crossover movement is desired or necessary to describe an important FRA’s regulation is patterned after the
intended, both crossover switches must concept that is used several times in this long-standing operating rule, and we
be lined for the straight-away subpart. Foul or fouling a track means would hope make it easier to
movement, i.e., straight track. rolling equipment or on-track understand for employees. This

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clarification is based on an RSAC switchmen and remote control This regulation is geared more for the
recommendation. FRA will consider operators. On rare occasions, a perspective of operational railroad
initiating a new rulemaking amending conventional locomotive engineer might workers who simply need to know that
the definition of ‘‘foul or fouling’’ if operate a switch, although, with push no matter what the signal department
future data reveals that high-and-wide button and radio control technology, it calls the switch, FRA requires it to be
or shifted loads become an increasing is possible that locomotive engineers treated as the equivalent of a hand-
explanation for accidents/incidents. may find themselves operating a greater operated switch if it is unprotected by
FRA defines hand-operated switch number of switches in future years. any type of indicator or verifier, and has
broadly to identify any type of switch Maintenance-of-way and mechanical some manual operation aspect to it—
when operated by manual manipulation employees also have occasion to operate regardless of whether that manual
including traditional hand-operated these switches. That being said, the rule operation is by push button or radio
(rigid) switches, power switches, and is focused on the type of switch that is control. BRS’s concern is a valid one,
spring switches. Excluded from this operated and not the job title of the but is one that is likely to perplex more
definition are switches operated by person operating; thus, regardless of a signalmen than operations employees.
push button or radio control if the person’s job classification, a person who Finally, we make the observation that
switch is protected by distant switch operates a switch fitting the definition EO 24 was issued without ever defining
indicators, switch point indicators, or of a ‘‘hand-operated switch’’ is required what FRA meant by a ‘‘hand-operated
other visual or audio verification that to comply with the requirements of this switch’’ in non-signaled territory; this
the switch points are lined for the subpart. emergency order, which this final rule
intended route and fit properly. The supercedes, has been in effect since
BRS commented that the proposed
definition includes all switches which November 22, 2005, without any person
definition of hand-operated switch was
are normally operated by manual requesting interpretive guidance on this
problematic. In general, the view raised
manipulation of the switch lever. As term and yet FRA’s experience has been
by BRS, in comments and discussions
FRA has defined this term, ‘‘hand- that every railroad has applied EO 24 to
during the RSAC working group, was
operated switch’’ includes switches those types of switches defined by the
that the definition did not accurately
operated by push button or radio ‘‘hand-operated switch’’ definition FRA
describe what signalmen would
control, but only when such switch is has promulgated in this rule.
consider a ‘‘hand-operated switch.’’ In
not protected by distant switch
BRS’s view, FRA’s definition included Finally, BRS requested that FRA use
indicators, switch point indicators, or
other visual or audio verification that other types of switches and was thus this rulemaking to regulate the design,
the switch points are lined for the over-inclusive. BRS also raised a inspection, and maintenance of the
intended route and fit properly. For concern that if FRA has a definition of signals that are protected by distant
example, the two types of indicators ‘‘hand-operated switch’’ in this subpart, switch indicators, switch point
provide a visual indication of the switch that this definition might eventually be indicators, or other visual or audio
alignment; and other electronic adopted by FRA in other parts of the verification, i.e., all those non-hand-
advancements are capable of sending a chapter. FRA gave great consideration to operated switches. FRA agrees that use
message to a receiver indicating the this request and attempted to draft the of substandard technology can lead to
switch’s alignment; such that a visual definition according to the preferences inappropriate reliance on audible or
check by an employee to determine that expressed by BRS in its comments; visual indications that a switch is in the
the switch is properly aligned would be however, FRA has decided not to amend desired position and locked when it is
redundant after receiving an electronic the rule for the following reasons. In not properly aligned and secured. FRA
message that has already served that attempting to craft an alternative that further notes that failure to provide
purpose. For switches that use push defined hand-operated switch more fouling circuits in cases where
button or radio control technology, the narrowly, FRA found itself having to employees cannot visually confirm that
‘‘manual manipulation’’ aspect is that create and define at least three other no equipment is out to foul the intended
the employee is required to throw the terms as well (e.g., power switch, dual- route could substantially undercut the
switch; and the electronic aspect of the control power switch, and manually- redundant safety protections intended
switch manipulation is primarily an operated switch), in order to cover all of by this rule. Finally, we acknowledge
option for avoiding personal injuries the types of switches FRA wanted the that this rule fails to adequately address
due to the throwing of a switch lever. rule to cover. In our view, the regulation the ability of employees to confirm that
FRA does not intend to address issues would be more complicated with four conflicting movements are not
related to power-assisted switches definitions when one will do. The approaching a switch location when
operated from central consoles, whether definitions located in this section are radio controlled switches are employed
within or outside of signaled territory, explicitly identified as to be ‘‘used in and approach circuits are not in place.
when so operated. this subpart;’’ any rule that FRA FRA also agrees with BRS that there is
With regard to the definition of hand- promulgates concerning the a safety concern if any railroad is failing
operated switch, several members of the maintenance of different types of to regularly inspect or maintain these
RSAC Operating Rules Working Group switches will be written in a separate ‘‘other signal arrangements.’’ However,
requested that FRA explain which part or subpart of this chapter and may FRA believes any such regulation of
employees would be required to comply require more technically detailed these other signal arrangements should
with the requirements for hand-operated descriptions. Certainly, FRA is not be part of a separate rulemaking, not one
switches. FRA explained that the required to maintain this definition of intended to solely focus on railroad
definition intended to characterize the hand-operated switch throughout all of operating rules and practices. FRA has
types of switches normally operated by its regulations if it requires greater detail not yet initiated a rulemaking in this
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operating employees, whether or not in other contexts. Considering all of the area, but held a technical conference on
there is some electronic aspect to the different crafts of workers, signalmen April 19, 2007, in Washington, DC to
operation of the switch. Such operating should have the least amount of address the technical aspects of this
employees include, but are not limited difficulty understanding how to issue (72 FR 14641; March 28, 2007).
to, conductors, brakemen, trainmen, properly operate and verify switches. Interested parties may wish to file

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comments to Docket No. FRA–2007– seem ill-advised to absorb such reasonably be expected to have
27623. Until FRA is able to provide expenses without proper permission; knowledge, such that there is no
suitable regulations to address thus, we would expect that at nearly question the person should be able to do
technology being employed to perform every crossing with crossbucks, stop the work in accordance with the
functions described in this final rule, signs, or other appropriate signage railroad’s operating rules. It is
and similar functions, railroads should indicating the presence of an at-grade imperative that only employees who
exercise caution and prudence in crossing, the railroad will be able to have been qualified should do such
implementing that technology. FRA was identify these crossings and alert its work that the rule restricts to qualified
encouraged to note that many employees of the need to protect such employees because a railroad that
participants in the Special Safety crossings during shoving or pushing allows unqualified employees to do
Inquiry appeared sensitive to this need. movements pursuant to § 218.99. such work is increasing the likelihood
FRA defined highway-rail grade FRA did not propose, but has added, of an accident/incident.
crossing in the NPRM, but has refined a definition of industry track in order to FRA defines remote control operator
the definition for purposes of this final refine the requirements in § 218.101 merely to aid in the clarification of
rule. The definition in the NPRM ‘‘Leaving Rolling and On-Track shoving or pushing movement
mirrored the definition in § 234.5 of this Maintenance-of-Way Equipment in the requirements involving remote control
chapter. FRA originally intended to try Clear.’’ Industry track is defined as a operations versus the requirements for
and keep the definition simple by switching track, or series of tracks, conventional operations. Remote control
carrying the same definition for this serving the needs of a commercial operators are ‘‘locomotive engineers’’
term used in the Grade Crossing Signal industry other than a railroad. Thus, it
per FRA’s regulations found at 49 CFR
System Safety rule found at 49 CFR part should be absolutely clear that a
part 240. Traditional engineers, i.e.,
234; however, upon further reflection, railroad yard does not contain industry
those persons qualified to operate
FRA realized that the proposed track, even though, admittedly, there
locomotives in a conventional manner,
definition would include many ad hoc might be industry track connected to the
may be trained on remote control
crossings on private property that are yard. The RSAC recommended this
equipment—and are thus also certified
often created and removed in short definition as it distinguishes industry
for remote control operations; in that
order. Some of these temporary track from other types of tracks used for
situation, the term remote control
crossings may also be illegal or built similar purposes (e.g., yard tracks, team
operator applies to the conventional
without consent of the railroad that tracks, sidings, etc.). The definition
owns the track. As the term ‘‘highway- RSAC recommended, and which is the engineer. Hence, the term ‘‘remote
rail grade crossing’’ is used in this rule definition FRA is promulgating, is the control operator’’ is not limited to those
in the context of protecting shoving or same definition FRA uses in its Guide persons who only are certified to
pushing movements, the proposed for Preparing Accident/Incident operate remote control locomotives, but
definition would have required that a Reports. to anyone certified to operate such
railroad and its employees be FRA has maintained from the NPRM locomotives. The industry uses the
responsible for determining that such ad a definition of locomotive that is shorthanded term ‘‘remote control
hoc crossings are protected during consistent with the definition contained operator’’ to refer to ‘‘remote control
shoving or pushing movements. It is in 49 CFR 240.7. FRA has promulgated locomotive operators’’ and, because
conceivable that the proposed this definition because the shoving and FRA solicited but did not receive any
requirement could have created pushing requirements of this subpart comments to the contrary, we trust that
enforcement dilemmas, especially when apply to certified locomotive engineers no one is confused by the dropping of
a crossing is created without any who may be operating vehicles that the reference to ‘‘locomotives’’ in the
notification to the railroad or train crew, meet this definition, but do not fall terminology. FRA received one
or the operation occurs at night, on a within the more mechanically-minded comment from AAR raising two
curve, or there is some other reason that definition used elsewhere in this concerns with regard to this definition.
the ad hoc crossing would be difficult chapter and part. FRA is aware that this First, AAR correctly noted that the
to spot without prior knowledge of its part already contains a more proposed definition mistakenly cited
existence. mechanically-minded definition, see § 240.5 when § 240.7 is the accurate cite;
Consequently, to avoid setting this § 218.5, and intends that the definition FRA has corrected this mistake. Second,
trap, FRA has changed the definition to used in this subpart supercede that AAR suggested an alternative definition
exclude the type of ad hoc crossings that other definition. To clarify that there are of remote control operator because it
are not part of the DOT National two definitions of this term with stated that the industry does not
Highway-Rail Grade Crossing inventory different applicability, FRA has added normally describe such operators as
or are unmarked by signage indicating language to the definitions to clarify locomotive engineers. AAR’s suggestion
the presence of an at-grade crossing. If which definition is applicable to for an alternative definition eliminates
a crossing has a DOT inventory number subpart F and which is applicable to the the term locomotive engineer from the
but is not an ‘‘at-grade crossing,’’ the part ‘‘except for purposes of subpart F.’’ definition, and refers to the operator as
crossing does not fall within this FRA has added a definition of ‘‘an employee certified by a railroad to
definition. In contrast, if a crossing does qualified which is identical to the operate remote control locomotives
not have a DOT inventory number, but definition added for 49 CFR 217.4 in pursuant to part 240 of this chapter.’’
has signage (e.g., crossbuck or stop sign) this rule. A person cannot be qualified FRA rejects AAR’s second suggestion
indicating the presence of an at-grade unless he or she has successfully because we do not agree with the
crossing, the crossing would fall within completed all ‘‘instruction, training, and distinction AAR is trying to make.
the definition. Although it is possible examination’’ programs required by Functionally, a locomotive engineer
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that a private property owner might both the railroad and this subpart. operating from a control stand in a cab
quickly construct a crossing that Where FRA specifies that a qualified and a remote control locomotive
included appropriate signs of the newly employee is to do the work, it is because operator play the same role in switching
established at-grade crossing without we want some assurance that the person operations, and, in some cases, they
the track owner’s permission, it would either has actual knowledge, or may play the same role in train movements.

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Thus, we consider it fundamental to of a roadway work group. The defines this term because we want to
both part 240 of this chapter and this designation of such a worker enables acknowledge that this type of worker
final rule that a remote control operator FRA to require leaving main track may be qualified to operate switches, so
be considered a locomotive engineer. switches in such a person’s charge as switches can be safely left in a
FRA defines remote control zone in well as being the conduit for switch switchtender’s charge. FRA has not
order to permit a shoving or pushing alignment information when other defined ‘‘switchtender’’ in order to
operation that is safe and yet protected workers in the group have operated suggest that railroads create such
differently from conventional shoving or switches. The communication among positions or that there is any sort of
pushing operations. This zone is a term group members is similar in importance requirement to employ switchtenders.
adopted by railroads that designate one to the communication that is required FRA defines the term track is clear to
or more segments of track, typically in between train crewmembers. FRA describe the required condition of the
a yard, where remote control operators intends this term to have the same track prior to initiating or continuing a
can safely switch cars without general usage as in subpart C of 49 CFR shoving or pushing movement under
continually determining that the track is part 214. § 218.99. If the four conditions for
clear for the movement, as long as a FRA has added a definition of the determining that the track is clear are
prior determination has been made. term siding to describe an auxiliary met, then if an accident occurs, it is
Although the location of a remote track, adjacent and connected to a main unlikely to be the fault of the person
control zone may be permanent, the track, used for meeting or passing trains. making the determination. That is,
regulation requires certain conditions to In § 218.101, the term ‘‘siding’’ is used when the portion of the track to be used
be met each time a zone is used for its in connection with an exception to is clear there should not be any rolling
intended purpose of allowing an leaving equipment in the clear. FRA equipment, on-track maintenance-of-
operation without an employee assigned understands that, in conversational or way equipment or conflicting on-track
to protect the leading end in the common usage, the term ‘‘siding’’ can movements that could collide with the
direction of movement, i.e., the pull-out also be taken to mean a customer’s shoving or pushing movement; there
end, of the remote control movement. siding or an industry’s siding. should be no intervening motor-vehicles
See § 218.99(d). Meanwhile, the regulation exempts or pedestrians to strike as all
FRA has noticed some confusion operations from abiding by the intervening public highway-rail grade
between the terms ‘‘remote control requirements for leaving equipment in crossings, private highway-rail grade
zone’’ and ‘‘remote control area.’’ A the clear on industry tracks beyond the crossings outside the physical confines
‘‘zone’’ is an integral part of remote clearance point of the switch leading to of a railroad yard, pedestrian crossings
control operations, whereas an ‘‘area’’ the industry. By adding the definition of outside of the physical confines of a
describes for informational purposes the term ‘‘siding,’’ FRA intends to railroad yard, and yard access crossings
only a location within which remote clarify the narrow meaning of the term are to be protected; there should be no
control operations occur and does not in this subpart from its broader, intervening switches or fixed derails to
directly affect such operations. The conversational usage. run through or over as these devices
‘‘area’’ is usually created by putting up FRA has added a definition of should all be properly lined for the
signs to warn employees working in the signaled siding to this rule to describe intended movement; and, the shoving or
vicinity that moving locomotives may a siding within a traffic control system pushing movement should not
be unmanned. The ‘‘area’’ is typically (TCS) territory or within interlocking accidentally collide with cars on a
larger than the ‘‘zone’’ as it covers limits where a signal indication connecting track if the portion of the
anywhere the remote control operation authorizes the siding’s use. In the track to be used has sufficient room to
could take place. It is important to NPRM, this definition was used to contain the equipment being shoved or
create these areas so that employees are define a controlled siding, but, upon pushed.
warned to use care in moving around further reflection, FRA realizes that this Within the definition of track is clear
the yard with the knowledge that using definition actually defines a ‘‘signaled are the conditions for determining that
hand signals to convey a message to a siding.’’ The NPRM used the term intervening public highway-rail grade
moving locomotive may be in vain as ‘‘controlled siding’’ in its exceptions to crossings, private highway-rail grade
there may not be an engineer in the cab making a shoving or pushing movement crossings outside the physical confines
to see them. Thus, these terms do not on main tracks and controlled sidings, of a railroad yard, pedestrian crossings
mean the same thing and should not be without requiring point protection, if outside of the physical confines of a
used interchangeably. certain conditions or prerequisites were railroad yard, and yard access crossings
FRA defines roadway maintenance met. The reason for the change to are protected. As shoving or pushing
activity to distinguish between those signaled siding is because the term movements typically occur without a
duties prescribed for roadway workers, controlled siding is not consistently locomotive engineer in a locomotive
including movement of on-track applied to mean the same thing on all leading the movement, it is vital to
maintenance-of-way equipment other railroads. The term signaled siding, protect crossings to prevent easily
than locomotives, and other types of however, more accurately captures avoidable accidents. The definition for
duties that a roadway worker may FRA’s meaning and intent, which is a track is clear considers the crossing
perform which are not so limited. In siding that is circuited (bonded) protected if the gates are in the fully
other words, a person designated a throughout its length. FRA also changed lowered position, and have not been
‘‘roadway worker’’ may engage in an the term ‘‘centralized traffic control observed or known to be
activity that is not a ‘‘roadway (CTC)’’ to ‘‘traffic control system (TCS)’’ malfunctioning. Whether or not there
maintenance activity.’’ This term is used to use the generic term rather than one are working gates, a crossing may be
to describe an exception to the general specific brand of TCS. protected by stationing a designated and
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shoving and pushing requirements FRA defines switchtender because a qualified employee at the crossing who
found in § 218.99(e)(3). few railroads still utilize a worker with has the ability to communicate with
FRA defines roadway worker in responsibilities for lining specific trains. A third option for protecting a
charge in order to provide a generic title switches for trains and a person with crossing would be available when
to the roadway worker who is in charge this position is not a crewmember. FRA crossings are equipped only with

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flashing lights or passive warning and pushing movements under § 218.99. operations, and any operation where
devices; in that situation, the crossing A yard access crossing is a highway-rail equipment might be left fouling a
would be considered protected when it grade crossing that is located within a connecting track—as well as any
is clearly seen that no traffic is yard and is either (1) open to employee that may be required to
approaching or stopped at the crossing unrestricted public access, or (2) open to operate hand-operated switches and
and the leading end of the movement persons other than railroad employees fixed derails. The written program may
over the crossing does not exceed 15 going about their normal duties, e.g., be a stand-alone program or
miles per hour. business guests or family members. A consolidated with the program of
In response to AAR’s comment and yard access crossing is one of the types instruction required under § 217.11 of
input during the RSAC process, FRA of crossings that must be protected. The this chapter. FRA anticipates that most
has modified the definition of ‘‘track is name is intended to describe a crossing railroads would choose to consolidate
clear’’ from the NPRM in several places. in a railroad yard, that is regularly used this program with the part 217
FRA has removed the requirement that by people who are not railroad requirement. Although FRA encourages
a crewmember or other qualified employees (although railroad employees the efficiencies consolidation is sure to
employee make a visual determination will, of course, also use these crossings). bring, FRA’s expectation is that the
because that requirement is already For example, one or more crossings in consolidated written program will
found in redesignated § 218.99(b)(3), a yard may be open to anyone needing sufficiently emphasize the requirements
formerly paragraph (b)(2). FRA has to get to a yard office or building. of this subpart. Each railroad is required
changed the term ‘‘conflicting Family members and others may need to to establish the program no later than
movements’’ in the proposed first come drop off or pick up railroad July 1, 2008, and continue to maintain
numbered condition to ‘‘conflicting on- employees, or make other pick-ups and it thereafter.
track movements’’ in the final rule. The deliveries; if that activity is permitted Paragraphs (a)(1) and (a)(2) provide
purpose for this change is to reflect that by the railroad and a crossing in the more details regarding what should be
the track can be considered clear even yard must be traversed, then the included in the written program.
if maintenance-of-way equipment is in crossing shall be considered a yard Paragraph (a)(1) requires that the
the vicinity of the track to be shoved or access crossing for purposes of this rule. program include instruction on
pushed onto; instead, if the equipment If the crossing is located away from yard
consequences of noncompliance, i.e.,
is not on a track at the time the move buildings such that they would not need
that FRA can take enforcement action
is commencing or continuing, it is not to be traversed by non-employees, then
considered a conflicting movement that through civil penalties or
the crossing should not be considered a
would prevent the movement from disqualification from safety sensitive
yard access crossing. FRA does not
being initiated. As discussed previously, service. See 49 CFR part 209, subpart D-
intend for every crossing in a yard to be
a definition of ‘‘yard access crossing’’ Disqualification Procedures. Paragraph
considered a yard access crossing just
has been added to ensure that railroads (a)(2) requires that the written program
because a non-employee might be
protect the crossings in railroad yards address the need to qualify employees
foolish enough to take an unmarked or
that someone other than an employee is on all aspects of the technology the
circuitous, unconventional route to the
likely to use. FRA has amended yard office. Of course, FRA advises each employees will be utilizing when
paragraph (2)(i) to reflect the proposed railroad to provide adequate signs for complying with the operating rules
section analysis that crossings are visitors to its yards so that there is no required by this subpart. For example,
protected when the crossing gates are in confusion about where to go—and thus employees may be expected to operate
the fully lowered position but only no confusion for employees regarding a variety of hand-operated switches and
when the gates have not been observed which crossings are required to be must be taught how to properly operate
or known to be malfunctioning; FRA protected. Generally speaking, we them as well as what to do if a
notes that the employees involved in the would expect that a crossing that malfunction or deviation is detected.
shoving or pushing move in which a consists of ballast thrown down to allow This final rule differs slightly from the
determination that the track is clear is maintenance-of-way vehicles and proposal. In the NPRM, FRA requested
required need to share any information employees to cross a track within a yard comments regarding whether the final
regarding malfunctioning grade would not be the type of crossing a rule should include any specific
crossings and may collectively be railroad would expect the members of reference to qualification of employees
responsible for improperly protecting an the general public to cross; thus, those on the territory where they will be
observed or known to be malfunctioning ad hoc crossings would nearly always working. FRA explained in the proposal
crossing. Finally, FRA has added the not be considered a yard access crossing that it was not immediately obvious
qualifier in the third condition that any and would not need to be protected in how this concept should be applied in
intervening ‘‘fixed’’ derails, as well as accordance with the shoving and the subpart F context. During the RSAC
intervening switches, shall be lined for pushing requirements in this rule. discussions and in comments, labor
the intended movement when representatives asked for a more explicit
determining that track is clear; although Section 218.95 Instruction, Training, recognition of this requirement and
FRA would also expect employees to be and Examination suggested revising paragraph (a)(2) to
on the lookout for portable derails In paragraph (a), FRA requires that require that each worker be ‘‘qualified,’’
before determining that the track is each railroad maintain a written rather than just ‘‘trained,’’ on the items
clear, there certainly is no excuse for program that will qualify its employees listed in that paragraph. FRA agrees and
operating over an intervening fixed for compliance with operating rules has changed the relevant proposed
derail. implementing the requirements of this phrasing from ‘‘shall include training’’
FRA is defining, for purposes of this subpart to the extent these requirements to ‘‘shall include qualifying the
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subpart, the term yard access crossing in are pertinent to the employee’s duties. employee.’’ Although this change does
order to further define what grade Thus, the pool of employees that would not amount to a specific requirement
crossings must be protected to ensure need to be covered by the program are that every employee shall be territorially
that the ‘‘track is clear’’ (another term those employees involved in shoving or qualified, it is implicit that this type of
defined in this section) during shoving pushing operations, remote control qualification is required when necessary

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to provide the knowledge required to through a longer grandfather provision allow a railroad to retain these records
comply with the subject rules. than the one year proposed and extend electronically in accordance with
Locomotive engineers, including those all the schedules for implementation so §§ 217.9(g) and 217.11(c) of this chapter;
that are remote control operators, are that the required training could be this option was added to address a
already required to be territorially accomplished during the normal three comment from APTA for FRA to specify
qualified pursuant to part 240 of this year cycle. The latter concern is that a that electronic recordkeeping would be
chapter. Furthermore, FRA hopes to large railroad with many employees to acceptable.
allay labor’s fears by reminding qualify will only need to train about a Paragraph (c) provides a mechanism
interested parties that if territorial third of its employees each year, while for FRA to review and disapprove of a
qualification is a necessary component FRA proposed requiring all current railroad’s written program required
for complying with one of the subpart employees to be trained within one year under paragraph (a). It also requires
F operating rule requirements and that from the date of the rule’s publication. minimum procedures and structure to
qualification was not provided to an FRA is not adopting the suggestions the review process. The paragraph
employee, FRA is unlikely to bring an because one full year should be provides that the Associate
enforcement action against the sufficient time for a railroad to modify Administrator for Safety will only
employee because FRA would likely its operating rules according to this disapprove programs of instruction,
have difficulty proving that the subpart and qualify its employees on the training, and examination required by
violation was ‘‘willful.’’ See 49 CFR part small number of operating rules covered this section for cause stated. As the
209, app. A. Finally, FRA has revised by this subpart. Many railroads may disapproval decision is made for cause,
paragraph (a)(2) by changing the word find little difference, if any, between the it is significant for the railroad to
‘‘employed’’ to ‘‘necessary’’ because, in subpart F requirements and their understand exactly why FRA is
context, the word ‘‘employed’’ implied existing operating rules. Experienced disapproving the program; thus,
‘‘used;’’ the change clarifies that an employees should have little difficulty notification of such disapproval will be
employee cannot be deemed qualified to understanding the nuances of any of the made in writing and specify the basis
accomplish the work without satisfying new rules, so FRA does not envision for the disapproval decision. If the
the qualifications requirements in the qualifying existing employees to be Associate Administrator for Safety
program that specify any instruction, greater than a refresher course with disapproves the program, the railroad
training and examination needed to limited subjects to be covered. FRA has 35 days from the date of the written
operate the technology and understand perceives that the commenters may be notification of such disapproval to
any related procedures. expressing a frustration that the
Paragraphs (a)(3) and (a)(4) address either (1) amend its program and submit
railroads will need to schedule this it to the Associate Administrator for
the implementation schedule for this qualification class and not be able to
subpart. Paragraph (a)(3) requires that Safety for approval, or (2) provide a
logistically combine it with a regularly written response in support of the
prior to January 1, 2009, employees scheduled operating rules training class
performing duties subject to these program to the Associate Administrator
under § 217.11 for every one of its for Safety. If the railroad chooses the
requirements shall be qualified per the employees; i.e., employees scheduled to
minimum requirements in this subpart. second option to defend the allegedly
receive operating rules training this year defective program, the Associate
It is further required under paragraph would be covered, but not those
(a)(3) that employees who are hired Administrator for Safety will inform the
previously scheduled for the following railroad of FRA’s final decision in
during the period following April 14,
two years. FRA permits railroads to writing. Although the rule is silent
2008 through January 1, 2009, would
combine the training under this subpart regarding whether a railroad may
not be provided such a grace period;
with the § 217.11 training, but not to request an extension, FRA intends for
instead, is required that new hires
extend the deadlines for the subpart F the Associate Administrator for Safety,
receive the proper qualification training
training. Again, AAR and APTA’s as the agency’s decision-maker, to have
before being allowed to perform duties
requests are denied mainly because the the flexibility to decide procedural
subject to the requirements of this
qualifications requirements under this issues, such as having the ability to
subpart. Furthermore, under paragraph
subpart cover a limited number of grant or deny requests for extensions of
(a)(4), after January 1, 2009, no further
operating rules and subject areas that time, as the issues arise. The Associate
grace period is provided and employees
shall receive recurrence training at least experienced employees should readily Administrator for Safety renders a final
every three years. FRA is requiring this comprehend without many questions or decision in writing which will specify
three year window because it is concerns. the terms and conditions under which
becoming a standard industry practice Paragraph (b) requires that the program will be considered
to re-qualify employees on operating qualification records required by this approved or disapproved. If the decision
rules at least every three years and that subpart be retained at a railroad’s denies the railroad’s request in whole or
is a reasonable time period in which to system headquarters and at the division in part, FRA intends for the railroad to
conduct continuing education. The headquarters, if any, where the amend its program and submit it to the
dates in paragraphs (a)(3) and (a)(4) employee is assigned. This will enable Associate Administrator for Safety for
were extended so that they would FRA to quickly obtain such qualification approval within 35 days of the final
coincide with the calendar year, rather records upon request. FRA has not decision as that is the period of time
than the effective date of the final rule. required a retention schedule for these accorded for amending programs when
Finally, pursuant to paragraph (a)(5), the records as we believe the section a railroad chooses not to appeal the
record for each employee shall mandates that at a minimum: (1) disapproval. Again, a railroad may
document qualification of employees Records must be kept for each employee request an extension of time to amend
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under this subpart by including any qualified and (2) when an employee is its program and submit it to the
records of required instruction, requalified, there is no longer a need for Associate Administrator for Safety for
examination and training. a railroad to retain the old record as it approval, and FRA intends for the
Both AAR and APTA requested that has been superceded by the new one. Associate Administrator for Safety to
FRA change the training schedule Paragraph (b) also includes the option to have the flexibility to decide whether to

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grant or deny such procedural requests. The main purpose of requiring that officials. A good faith challenge is
Although enforcement action is always each railroad establish operating rules initiated by an employee who believes
discretionary, FRA believes that containing certain minimum that if he or she obeys a particular order
enforcement action is warranted when a requirements under this subpart is to issued by a railroad official, the
railroad fails to appropriately and ensure safe handling requirements of employee would violate one or more of
timely amend its program; for this certain operations by employees where the operating rules required by this
reason, FRA is requiring in paragraph human factor caused accidents have subpart. At its core, the good faith
(c)(2) that a failure to submit the historically occurred. Codifying these challenge and its attendant procedures
program with the necessary revisions to requirements will enable FRA to take should force a railroad official to listen
the Associate Administrator for Safety enforcement action when necessary, and to an employee’s concern regarding
will be considered a failure to will therefore discourage such an order and to reconsider the
implement a program under this part. noncompliance with these important validity of the order. FRA has created a
The approach in paragraph (c) safety rules. FRA is convinced that mechanism for appealing the first
recognizes that FRA will typically want human factor caused accident rates and official’s order to a second official in the
to review such written programs during incidents of noncompliance would be situation where dialogue and
audits or investigations and that FRA significantly lower if each railroad were compromise do not resolve the
should have the authority to request properly qualifying employees and discrepancy.
changes to the program if it does not consistently enforcing its own operating FRA has added paragraph (a) so that
meet the minimum requirements of this rules. FRA’s perception is that on the regulation sets forth the
rule. The oversight authority vests with occasion some railroad officers are responsibility of employees to provide
the Associate Administrator for Safety. permissive in allowing occasional consistence with other good faith
Although FRA would have authority to violations of operating rules in order to challenge regulations promulgated by
review in detail each railroad’s program, achieve short-term perceived FRA. See 49 CFR 214.503(a) and
efficiencies. For example, a railroad 214.313. This paragraph clarifies that
FRA is not requiring each railroad to
officer may order an employee to shove whenever an employee makes a good
submit its program for review and
blind, i.e., without ensuring that the faith determination that the employee
explicit approval. Rather, FRA will
track is clear for the movement, in an has been directed to violate either FRA
review the qualification programs of the
effort to finish a job quickly and get a regulations or a railroad’s operating
railroads over a multi-year cycle, in
train out of the yard. If the move rules regarding the handling of
connection with review of the overall
originated from a direct order by a equipment, switches, and fixed derails,
program of operating rules, to determine
railroad official, the employee might the employee shall inform the railroad
if they are effective. Among the factors
fear challenging the railroad official on or employer (as not all rail employees
that would be considered would be the
the order or might have complied with work directly for a railroad) of the belief
extent to which the program is founded that the order may be in violation. Thus,
so many similar orders in the past as to
on appropriate task analysis, the in the interest of safety, an employee
not perceive the danger in occasionally
completeness of the curriculum, the has a duty to raise challenges to
violating an operating rule. Another
types of instructional methods, perceived non-complying orders. With
example could occur when an employee
appropriateness of written and other the addition of paragraph (a), all of the
is told he or she may leave work early
tests, criteria for successful completion, proposed paragraphs required
as soon as a particular assignment is
and—most importantly—the ability of renumbering.
complete. Rather than taking the longer
employees said to be qualified to apply but safer route to determine that a As explained in the proposed rule,
the rules in practical situations. The switch was left properly lined, the FRA refers to the challenge as the ‘‘good
final rule contains more details than in employee assumes the switch was left faith’’ challenge because we do not
the NPRM but the overall approach is properly lined, even though some time intend for employees to abuse it. We
not significantly different. has passed since the employee last expect bad faith challenges to never or
Section 218.97 Good Faith Challenge observed it. This rule is intended to rarely occur and for the challenge to
Procedures check emergence of the culture that provide, in part, for a dialogue between
occasionally accepts some degree of employee and supervisor that railroads
FRA received a wide-variety of noncompliance with a railroad’s should be permitting and encouraging
comments pertaining to the proposed operating rules. without being prompted by regulation.
good faith challenge procedures section. One essential aspect of changing this That said, it is possible for bad faith
In short, the labor organizations undesirable culture of complacency challenges to occur. For example, if
generally supported the procedures and with some noncompliance is to several experienced employees in a
offered small suggestions for establish better lines of communication particular yard were all to initiate
improvement, while the associations between employees and railroad separate challenges where no real
representing railroad management officers. Section 218.95 requires that dispute could be articulated, this
generally requested more significant railroads have a written program that concerted effort to create a work
changes based on legal and policy will ensure that employees are well stoppage or slowdown would be in bad
concerns. The legal concerns raised by trained and qualified to do the work. A faith. It might also be considered bad
the comments are addressed earlier in qualified employee should readily faith, or at least cause for concern, if an
this rule in the preamble. See IV. recognize when a railroad officer has employee repeatedly made similar
General Comments/Major Issues, Good given the employee an order that does challenges that were without merit; in
Faith Challenge—Legal Issues. While not comply with the railroad’s own such an instance, the facts and
most of the procedures in this paragraph operating rules. In order to address this circumstances of each incident would
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are maintained from the proposed rule, issue further, FRA is requiring good need evaluation as the problem could be
FRA has amended this section to allay faith challenge procedures. inadequate qualifications or
valid concerns raised by the comments The good faith challenge procedures experience—not necessarily a challenge
and to correct deficiencies in enforcing are about establishing dialogues made in bad faith. It is certainly not an
the challenge. between employees and railroad act of bad faith for an employee who

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makes a challenge to have simply more stringent requirements. See 49 railroad’s procedures provide for
misinterpreted the operating rule or CFR 218.1. ‘‘prompt’’ challenges. FRA’s
practice, and we would have serious Proposed paragraph (a) is expectations are that such challenges
concerns with a railroad that sought to redesignated as paragraph (b). Paragraph should be resolved in a matter of
punish an employee merely for asserting (b) provides the general procedures for minutes, certainly not an hour or more.
the challenge and being wrong. Again, implementing a good faith challenge It is within this context that FRA also
we emphasize that we do not anticipate specific to the requirements of this specified the concept that a railroad’s
abuse of the challenge as FRA has not subpart; railroads or employers of written procedures provide for
heard any anecdotal discussions of railroad employees subject to this ‘‘equitable resolution of challenges;’’ by
abuse with the already existing good subpart, of course, are free to implement this requirement, FRA meant for a
faith challenges. Furthermore, if the a good faith challenge in areas not railroad officer to give deference to an
good faith challenge is found to be subject to this subpart as Metro-North employee’s challenge if the employee
regularly abused, FRA would consider has done. Paragraph (b) requires that has suggested a safe way to do the work
amending the challenge to reduce the each employer be responsible for the that is in compliance with the relevant
likelihood of abuse or abolishing the training and compliance by its operating rules. Follow-up to clarify the
challenge during a future rulemaking. employees with the requirements of this correct application of the rule leading to
FRA is promulgating good faith subpart. Obviously, railroads will have the challenge can be done at a later time
challenge procedures that are more to instruct employees on all aspects of or date so that a definitive answer may
detailed than those established for the good faith challenge or it will have be provided by the railroad to the
roadway workers because the officer/ no effect. The good faith challenge railroad officer and employee involved;
employee relationship dynamic is procedures must be made available to e.g., a railroad’s manager of operating
different for roadway work versus roadway workers as the definition of rules may want to issue a bulletin
operations work. That is, the strict chain ‘‘employee’’ includes ‘‘an individual generically outlining the challenge and
of command is more prevalent in who is engaged or compensated by a the proper application of the rule. As a
operations than roadway work. Thus, a railroad or by a contractor to a railroad good practice, a railroad should take
supervisor of roadway work may be to perform any of the duties defined in this extra step to clarify a definitive
more accepting of a challenge than an this subpart. Although FRA does not answer even if the employee does not
operations supervisor, e.g., a anticipate that roadway workers would request such a review, as provided for
yardmaster. be involved in many, if any, shoving or in paragraph (d)(4), as it may be used as
The concept of a good faith challenge pushing movements, the regulations a learning experience for other
applied to operations is not wholly pertaining to switches, fixed derails and employees and supervisors.
unknown in the railroad industry. For leaving equipment in the clear would
example, we applaud the efforts of likely be applicable. FRA intends to take FRA is revising proposed paragraph
Metro-North Railroad, which has enforcement action where a railroad (a)(2), which has been redesignated as
instituted a good faith challenge that is fails to properly instruct employees or a paragraph (b)(2). The proposed
much broader than what FRA is railroad’s officers fail to comply with paragraph would have required that a
requiring through this rule. Metro-North implementation of the good faith railroad’s good faith procedures indicate
allows good faith challenges to any challenge procedures. that the challenge is not intended to
directive that would violate an Paragraph (b)(1) requires that each supplant any rights or remedies
operating rule or instruction in the employer adopt and implement written available to the employee under a
following areas: operating rules, procedures which guarantee each collective bargaining agreement or
timetable, equipment operating employee the right to challenge in good under the statute providing for
instructions, electrical instructions, faith whether the procedures that will employee protections found at 49 U.S.C.
hazardous material instructions, safety be used to accomplish a specific task 20109. As discussed earlier, the
instructions, and bulletin orders and comply with the requirements of this employee protections of this statute
general notices. Metro-North provides subpart or any operating rule relied have been expanded and the authority
its employees the right to have a second upon to fulfill the requirements of this to investigate whistleblower complaints
supervisor review the challenge and subpart. Therefore, it is not enough for has been transferred to DOL. The
lists the titles of the supervisors who are an employer to maintain such a paragraph’s revisions require that the
able to perform a second review: guarantee in its written procedures as written procedures required by this
Operations Managers, District the employer has a duty to implement section shall indicate that the good faith
Superintendents, Line Superintendents, this guarantee. If an employee is denied challenge described in paragraph (b)(1)
General and System Road Foremen, the right to make a challenge, or is is not intended to abridge any rights or
Chief Rail Traffic Controllers, and denied any aspect of the required remedies available to the employee
Operating Rules Department procedures, FRA may seek enforcement under a collective bargaining agreement,
Supervisors. Metro-North also pledges action against the employer or or any Federal law including, but not
that it will not subject an employee to individual responsible for denying the limited to, 29 U.S.C. 651 et seq., 6
discipline for a violation of a rule or employee’s right. Of course, the U.S.C. 1142, or 49 U.S.C. 20109. The
instruction when being ordered to requirement’s applicability would only citation to 29 U.S.C. 651 et seq. is a
comply by a second supervisor, be for a challenge to any order that reference to the Occupational Safety and
provides for the right to document the violates a requirement in subpart F. Health Act of 1970 (OSH Act of 1970)
challenge prior to the completion of the Paragraph (b)(1) of the rule also that is implemented by DOL’s
tour of duty, and the right to a written requires a railroad to adopt and Occupational Safety and Health
decision if requested promptly. Metro- implement written procedures as the Administration (OSHA) and is designed
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North has also instituted its own form mechanism for instituting the good faith to regulate employment conditions
for tracking each challenge. Of course, challenge. Such written procedures relating to occupational safety and
FRA is prescribing minimum good faith should not lead to protracted arguments health and to achieve safer and more
challenge requirements only and each that are unusually disruptive to healthful workplaces. Section 11(c) of
railroad may prescribe additional or operations as FRA is requiring that each the OSH Act of 1970, found at 29 U.S.C.

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660(c), generally protects employees the employee is receiving instruction on standardization of the challenge should
from retaliation for raising concerns or the relevant operating rules. Of course, cause railroad officers to truly reflect on
filing complaints alleging workplace FRA does not expect a railroad to the orders issued and whether any
safety or health violations under the instruct an employee whose duties do aspect of an order would result in
Act. The citations to 6 U.S.C. 1142 and not involve handling equipment, noncompliance with the relevant
49 U.S.C. 20109 are references to switches and derails. If an employee’s railroad operating rules.
protections afforded to public duties change to include these activities, Proposed paragraph (b)(3) contained
transportation employees and the railroad will have to provide the two components, one of which has been
employees of a railroad carrier engaged instruction prior to assigning the new redesignated as paragraph (c)(2).
in interstate or foreign commerce duties. Paragraph (c)(2) contains a similar
respectively, including employees of The good faith challenge procedures requirement to the first component of
contractors and subcontractors. Both of are a critical component of this final proposed (b)(2), but with some
these provisions are implemented by rule, which is narrowly tailored with important differences. Several railroads,
DOL. Although FRA views these the intention to drive down the number and the associations that represent
statutory provisions as wholly separate of accidents caused by human factors. them, objected to the proposed
from the regulation we are promulgating Employees learn in the classroom but paragraph in that it stated that the good
and FRA’s enforcement authority, the there are often so many topics covered faith written procedures include a
statutory provisions provide employees in an operating rules class that it could provision ‘‘that no work is to be
with rights and remedies in cases of be difficult for an employee to retain performed with respect to the
retaliation for refusing to violate or everything taught. To compensate, challenged task until the challenge is
assist in the violation of any Federal railroads traditionally provide operating resolved.’’ The proposal was intended to
law, rule, or regulation related to rule books not only to put employees on duplicate a similar provision found in
railroad safety as well as taking other notice that compliance with these rules the roadway worker rule that required
enumerated actions. The citation to is expected, but also, as a reference so allowing the challenging employee ‘‘to
these laws in the written procedures is that each employee can check the rules remain clear of the track until the
a reminder to employees of their rights and be reminded of their requirements. challenge is resolved.’’ 49 CFR
and remedies which provide an In similar fashion, FRA is requiring in 214.311(b). And while this requirement
opportunity to pursue an assortment of paragraph (b)(4), previously proposed has not posed any problems for
relief, including punitive damages, paragraph (a)(4), that each railroad employers of roadway workers, many
against an employer for an improper provide a current copy of its written railroads expressed dismay at this
action. good faith procedures to each affected provision and sought additional
FRA’s decision to expand paragraph employee. By requiring a current copy, amendment or deletion of this
(b)(2) is being made in conjunction with FRA has incorporated the idea in the paragraph.
the deletion of proposed (b)(2). proposed rule that each railroad provide The amendments to paragraph (c)(2)
Proposed paragraph (b)(2) would have each affected employee with any are intended to protect the employee
required that each railroad’s good faith amendments to its written procedures who made the challenge from being
written procedures contain a prior to the effective date of the required to comply with the challenged
requirement that would provide that an amendments. Also, like any other record directive while the challenge is
employee making a good faith challenge FRA requires, a railroad would need to unresolved. The first part of the
shall not be discharged or in any way make the written procedures available paragraph requires that the written
discriminated against for making the for inspection by FRA during normal program ‘‘provide that the railroad or
challenge. FRA viewed the proposal as business hours. employer shall not require the
an essential aspect of the good faith Proposed paragraph (b) has been challenging employee to comply with
challenge procedures as employees redesignated as paragraph (c). Paragraph the directive until the challenge
would certainly be discouraged from (c) requires additional procedures for resulting from the good faith
raising a challenge if the employer is not each railroad to include in its written determination is resolved.’’ This
prohibited from retaliating against an good faith procedures. Each of these language more closely conforms to
employee for making a challenge. more specific requirements lays the FRA’s other good faith challenge
However, as explained in the preamble, framework for what FRA envisions as a regulations than the NPRM.
the recently amended statutory respectful dialogue between two In RSAC Working Group meetings,
employee protection provisions changed individuals with differences of opinion FRA heard two related complaints from
the landscape of whistleblower on an operations issue with a safety railroads regarding proposed paragraph
protection for railroad employees such component; the two individuals are, of (b)(3). One, several railroads commented
that FRA no longer perceives a need for course, an employee and an officer of that the proposed regulatory text did not
a separate regulatory requirement the railroad or employer. address whether the challenging
against retaliatory conduct. See B. Good Paragraph (c)(1) requires written employee could be ordered to do other
Faith Challenge—Legal Issues, 4. Anti- procedures granting each employee the work while the challenge is unresolved.
Retaliation Provision. right to challenge any directive which, As it was FRA’s intent to allow for this
Proposed paragraph (a)(3) is based on the employee’s good faith type of work, we have added paragraph
redesignated as paragraph (b)(3). This determination, would cause the (c)(3) to address this issue. Paragraph
paragraph requires that a railroad employee to violate any requirement of (c)(3) requires that the written
instruct affected employees on the good this subpart or any operating rule relied procedures shall provide that the
faith challenge procedures upon to fulfill the requirements of this railroad or employer may require the
contemporaneously with the training subpart. The good faith challenge challenging employee to perform tasks
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railroads are required to provide under procedures should eliminate any stigma unrelated to the challenge until the
49 CFR 217.11. The idea is that an employees have regarding challenging challenge is resolved. Of course,
employee’s chance of understanding the railroad officers on safety issues whether or not a railroad or employer
proper application of the good faith pertaining to handling equipment, chooses to exercise the option of
challenge should be greatest at the time switches and derails. Likewise, switching an employee’s duties while

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the challenge is being resolved is a numbered (i) through (iv). One, we by another railroad or employer officer
decision for the railroad or employer. expect that some railroad officers when be provided. The immediate review
The second of the two complaints challenged will realize that the must be held by another officer who
from railroads regarding proposed employee’s suggested alternative cannot be unduly influenced by the
paragraph (b)(3) involved a concern that method of operation is an acceptable officer who issued the challenged
the NPRM indicated that nobody could option that is in compliance with this directive or the review will not have the
do the work with respect to the subpart and the carrier’s operating rules appearance of fairness. FRA expects that
challenged task until the challenge was implementing this subpart. The officer fair review will be accomplished if the
resolved. FRA did not agree that the may or may not agree that the original reviewing officer is a different officer
NPRM prohibited another employee directive was non-complying but the who is not a subordinate of the officer
from doing the challenged task prior to challenge in this case can be resolved who issued the challenged directive.
resolving the challenge. Meanwhile, we amicably. Two, after making a challenge FRA envisions this immediate review as
had, and still have, reservations about and receiving an explanation or a quick check with another officer that
providing a railroad or employer with a recitation of the rule from the officer, an should not be unduly burdensome.
clear path to order some other employee employee may likewise realize that the In the NPRM, FRA requested
to do work that another employee is officer’s directive was in compliance comments regarding whether some
challenging as non-complying—and and decide to comply with the directive. smaller railroads might have difficulty
thus unsafe. In response to the requests Three, in some situations, the challenge complying with an immediate review
for clarification, paragraph (c)(4) has may lead to a discussion of options on requirement. FRA did receive
been added. This paragraph requires the how the task can be performed in comments, mostly oral during the RSAC
written procedures to provide that the compliance with the operating rules. Railroad Operating Rules Working
employer may direct an employee, other That discussion may lead to a Group meetings, explaining that the
than the challenging employee, to realization either that both persons were smallest railroads would likely
perform the challenged task prior to the only partially correct or there is another encounter problems providing an
challenge being resolved as long as this option not previously asserted. Under immediate review when so few officers
other employee is informed of the those circumstances, an amicable would be available to conduct them.
challenge and does not also make a good resolution would be the advancement of Consequently, FRA has decided to
faith determination that the challenged a third option that was reached through revise the requirement in paragraph
task would violate FRA regulations communication and compromise, and is (d)(1) so that the immediate review will
regarding the handling of equipment, therefore satisfactory to both parties. not be mandatory for each railroad with
switches, and fixed derails as required Four, there may be instances when an less than 400,000 total employee work
in this subpart, or a railroad’s operating officer believes the directive is hours annually.
rules implementing the requirements of permitted by the operating rules, and In paragraph (d)(1)(i), FRA retains
this subpart. Thus, paragraph (c)(4) that either the employee’s challenge is from the NPRM the requirement that the
prohibits an employer from ordering a being made in bad faith or there is no immediate review not be conducted by
second employee to do the work reasonable alternative to the direct the person issuing the challenged
without verbally notifying this second order; in those situations, the written directive, or that person’s subordinate.
employee that another employee has procedures will provide for review as APTA commented that it is not always
asserted a good faith challenge. At a further determined under paragraph (d) clear what other officers are in another’s
minimum, for purposes of this of this section. chain of command, and whether one
paragraph being ‘‘informed of the Proposed paragraph (c), which was officer is subordinate to another.
challenge’’ means that the person giving redesignated as paragraph (d), requires Although not directly addressed in the
the directive shall explain that another each railroad to provide additional rule, the rule’s silence on this issue is
employee has made a good faith written procedures in the event that a intended to provide each railroad with
determination that the task does not challenge cannot be resolved amicably. the flexibility to describe its approach in
comply with an operating rule or FRA Thus, the additional procedures in this its procedures and how the intent of the
regulation, as well as provide a synopsis paragraph are required to be complied rule will be followed. Similarly, during
of the specifics of the challenge. This with when the person issuing the the RSAC Railroad Operating Rules
option permits an employer, who is directive determines that the employee’s Working Group meetings, AAR and
certain that the challenging employee is challenge has not been made in good APTA voiced opposition to the idea of
wrong, an opportunity to get the work faith or there is no reasonable the promulgation of a good faith
done by another qualified person. Of alternative to the direct order. As it is challenge. Both associations were
course, any employee asked to perform often difficult to determine that a person concerned that implementation of such
a task that does not comply with this is acting in bad faith, the person issuing a challenge would pose numerous
subpart has the same right to challenge the directive should typically give the logistical difficulties as well as a
the task, regardless of whether any other challenging employee the benefit of the perceived high potential for abuse by
employee has also challenged that task. doubt that the challenge is being made employees. One concern raised was that
Also, all employees have the same in good faith and attempt to resolve the on-time performance could easily be
responsibility under paragraph (a) to challenge without the need for further compromised if an employee raised a
inform the employer of directives that review. challenge and a quick compromise
violate this subpart or any operating In the event of a stalemate, where the solution could not be reached. The rule
rules implementing this subpart. challenging employee and the person does not need to address this issue as
The second part of proposed issuing the directive cannot agree to each railroad or employer needs to
paragraph (b)(3), which has been resolve the challenge, paragraph (d) address it by setting up effective
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redesignated as (c)(5), identifies the requires that the written procedures protocols for supervisors to follow when
ways that a challenge may be provide that four additional issuing direct orders to proceed; i.e.,
‘‘resolved.’’ Each of the ways that a requirements be met. Paragraph (d)(1) each yardmaster or other supervisor
challenge may be resolved has been carries over from the NPRM the should know who to contact in the
designated in its own paragraph requirement that an immediate review event that an immediate review is

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needed. A railroad may wish to provide the employee of the statutory anti- transmission to be recorded) or in
contact lists to each supervisor of other retaliation protection prior to the writing any time ‘‘before the tour of
supervisors so that each supervisor has employee choosing between doing or duty is complete.’’ This additional
multiple people to contact in the event refusing to do the work. Two, it reminds requirement also reflects an existing
a challenge needs immediate review. the employee that if he or she refuses to statutory requirement that entitles an
Again, the intent of the rule is to do the work, the statutory protections individual to document a protest of a
provide for an immediate review by a will not protect him or her from direct order of a railroad carrier official
railroad officer who cannot be unduly retaliation if the employee is acting or supervisor under protest
influenced by the officer who issued the unlawfully or in bad faith. Three, the communicated to the official or
initial order so that a fair review may be officer’s act of providing this supervisor. 49 U.S.C. 21304. Of course,
perceived. As explained previously in notification to the employee also ‘‘the absence of such a protest will not
this analysis, Metro-North has provides a reminder to the officer that be viewed as warranting a presumption
addressed this issue in its good faith the employee is likely protected from of willfulness on the part of the
challenge program and has thus retaliation for refusing to do the work employee who might have
provided an example of how to address except where there is evidence proving communicated it.’’ 49 CFR part 209,
this issue. that the employee’s refusal is unlawful app. A, ‘‘Civil Penalties Against
The requirement in paragraph or made in bad faith. An officer ordering Individuals.’’ Paragraph (d)(3) does not
(d)(1)(ii) is based on a requirement in an employee to do such work would be supercede the statutory requirement nor
proposed paragraph (c)(1). During an expected to have a high degree of does it exceed it. Given the existing
immediate review, the reviewing officer confidence in issuing such an order, and statutory requirement, the time needed
has the same options to resolve the we would expect railroads and to document a protest should not pose
challenge as the person who issued the employers to carefully instruct officers a new burden on railroads.
challenged directive, however, the on these procedures, as a challenging FRA has deleted proposed paragraph
officer making the immediate review employee might file a complaint or (c)(3) which stated that the written
shall also have the option described in lawsuit based on the failure to follow program ‘‘provide that the employee be
paragraph (d)(2). FRA believes that there proper good faith challenge procedures orally advised that completing the work
has to be some finality to the immediate or for later retaliation based on a refusal as ordered will not subject the employee
review process and that one review is to do the work. to penalties or consequences for
enough. Of course, paragraph (d)(1)
provides the minimum immediate Paragraph (d)(3) maintains a similar noncompliance with this subpart.’’
review requirements and a railroad is requirement from proposed paragraph When FRA published the NPRM, this
not prohibited from providing a second (c)(2) that the written procedures paragraph was intended to further
immediate review or other additional provide the employee with an clarify existing statutory rights under 49
requirements. opportunity to document electronically U.S.C. 21304. Upon further reflection,
Paragraph (d)(2) provides that if the or in writing any protest to the railroad FRA found the proposed paragraph
officer making the railroad’s or or employer’s final decision before the could be confusing in that it might
employer’s final decision concludes that tour of duty is complete. The employee suggest that a railroad officer or
the challenged directive would not shall also be afforded the opportunity to supervisor could bind the FRA in the
cause the employee to violate any retain a copy of the protest. Examples of use of the agency’s enforcement
requirement of this subpart or the electronic records may include, but are discretion. This might be true even
railroad’s or employer’s operating rule not limited to, recorded radio where the railroad official misapplied
relied upon to fulfill the requirements of communications, electronic mail (i.e., the law, or the individual was not
this subpart and directs the employee to e-mail), or filling out a computer form entitled to the right. APTA also raised
perform the challenged directive, the or database. If electronic recording is a valid concern that the proposed
officer shall further explain to the permitted by the railroad’s program, paragraph could easily be
employee that Federal law may protect railroads will need to maintain methods misinterpreted in another way; e.g., an
the employee from retaliation if the for providing the employee with a copy employee who invokes a good faith
employee refuses to do the work and if of that record. Maintaining such a challenge on a shoving move may
the employee’s refusal is a lawful, good record facilitates the employee’s ability believe that he can’t be disciplined, or
faith act. This paragraph is based on the to follow-up on any further review have certification revoked if the
option in proposed paragraph (b)(3) that requested under paragraph (d)(3). FRA employee is a locomotive engineer, for
suggested permitting an officer to considered whether to require that the passing a stop signal related to that
resolve a challenge by issuing a direct employee be provided with the same movement even though the officer
order to proceed with the work as opportunity to create this record did not give the crew authority or
initially ordered. There may be immediately following the direct order permission to pass the signal. Despite
situations where the officer making the to proceed with the task, however, FRA the fact that this paragraph was deleted
final decision concludes that the direct has accepted several railroads’ and that employees are not required to
order would not violate this subpart, or arguments that this could prove too be orally advised that completing the
any operating rule relied upon to fulfill disruptive to operations, especially work as ordered will be a defense to
the requirements of this subpart; in that passenger and commuter operations penalties or consequences of
situation, the officer may direct the where on-time performance is critical. noncompliance under this subpart,
employee to perform the challenged Additional time delays would result if section 21304 is still applicable. Thus,
directive after explaining to the an employee had the right to ‘‘[a]n individual is deemed not to have
employee that Federal law may protect immediately document the challenge committed a willful violation if the
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the employee from retaliation if the before returning to work. FRA has individual was following the direct
employee refuses to do the work and if addressed this issue by requiring in order of a railroad carrier official or
the employee’s refusal is a lawful, good paragraph (d)(3) that the employee be supervisor under protest communicated
faith act. This notification requirement afforded an opportunity to document to the official or supervisor.’’ 49 U.S.C.
serves several purposes. One, it reminds the protest electronically (e.g., by radio 21304.

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Proposed paragraph (c)(4), the procedures needed to be kept so consideration of the comments received.
redesignated as paragraph (d)(4), FRA could inspect or copy them. Four commenters raised specific issues
requires that the direct order procedures Paragraph (e)(1) addresses this issue by in written comments: BMWED, AAR,
shall also provide the employee with requiring a copy of the procedures to be UTU, and BLET. The discussions of
the right to one more review by a retained at both the railroad’s system these comments are integrated into the
railroad officer designated by name or headquarters and at each division paragraphs under which they apply.
title in the written procedures who will headquarters. This paragraph also Generally, in conventional operations,
make the final interpretation of the explains that the procedures shall be shoving or pushing movements occur
applicable operating rule. The railroad made available to representatives of the when the controlling locomotive is not
is not prohibited from designating more FRA for inspection and copying during leading the movement because the
than one individual by name or title, normal business hours. locomotive engineer is not in a position
although it would likely be useful to In paragraph (e)(2), FRA has added a to have an unobstructed view of the
have one person or office overseeing new record retention requirement for track in the direction of the shoving
these interpretations. In the proposed any written good faith challenge movement. However, in remote control
rule, FRA did not specify a deadline for verification decision made in operations, there may be an issue with
issuing the verification decision; after accordance with paragraph (d)(4). The respect to point protection in either
further consideration, FRA has decided good faith challenge procedures are direction of movement. The terms
that some reasonable time limit should designed so that most challenges will be ‘‘shoving’’ and ‘‘pushing’’ have the same
be imposed to prevent a railroad from resolved on the spot through employee/ meaning but FRA uses both terms
taking an inordinate amount of time to officer discussions that will not produce because our nation’s railroads have split
respond to an employee’s request. FRA a written decision. When the conflict in the usage of each term.
has decided to require that a railroad between the parties cannot be resolved The requirement proposed in
issuing a verification decision must do on the spot, a written decision is paragraph (a) has been redesignated as
so within 30 days after the expiration of required. FRA needs to be able to review paragraph (a)(1) and revised, but the
the month during which the challenge those written verification decisions to reasons behind the requirement remains
occurred. Thus, regardless of whether analyze what types of conflicts did not the same. The reasons behind this
the challenge occurred on November 1st get resolved amicably. Those types of paragraph are to ensure that (1) each
or 30th, the verification decision must challenges may have some merit and railroad adopt and comply with an
be provided to the employee no later result in further FRA involvement to operating rule which complies with the
than December 30. FRA considered resolve underlying safety issues. The requirements of this section; and (2)
imposing a strict 30-day deadline, but written decision should provide enough when any person including, but not
background to understand the challenge limited to, each railroad, railroad
decided that this type of deadline,
by citing the applicable rules and officer, supervisor, and employee
patterned after the one found in 49 CFR
procedures, and providing an in-depth violates any requirement of an operating
225.11, for reporting of accidents/
explanation of any interpretations rule which complies with the
incidents, provides greater flexibility
necessary to analyze the factual requirements of this section, that person
without unduly delaying the
circumstance. FRA is also requiring that be considered to have violated the
verification decision. This paragraph
those decisions be retained for at least requirements of this section. The NPRM
was also changed to require that the
one calendar year after expiration of the was not intended to mean, but could
employee make the request for further
year during which the decision was possibly have read, that each person
review in writing; the proposed
issued. The requirement for record was only to uphold and comply with
paragraph left open the possibility of a the railroad’s operating rule and not the
retention, while not proposed, follows
verbal request which, if left regulation itself. The revisions to this
as a logical requirement from proposed
unanswered, could potentially lead to paragraph are intended to clarify FRA’s
paragraph (c)(4) permitting the
arguments over whether the request was intent.
employee to request that the railroad
actually made. FRA is not requiring that Paragraph (a)(2) adds a new
provide a written decision. We cannot
the written request be on a form, but a requirement that the shoving or pushing
fathom that a railroad would produce
railroad may choose to create one. movement requirements of this section
such a written decision and not retain
However, rather than permit the do not apply to free rolling equipment—
it for some reasonable period thereafter
employee to decide whether or not the a clarification that was not in the
in order to retain an unaltered original
railroad should provide the employee proposed rule. FRA added this
and possibly to use as a reference to
with a written decision as in the NPRM, clarification regarding free rolling
help address future, similar challenges.
the railroad is required to provide the Paragraph (e)(3) was added to clarify equipment because several participants
employee with a written decision so that each railroad is authorized to retain at the RSAC working group meetings
that there is no dispute regarding any records required by this section in were unclear regarding whether FRA
whether the railroad fulfilled this an electronic format so long as the intended the rule to apply to switching
obligation. A final written decision will electronic records are kept in activities that result in free rolling
also permit FRA with the opportunity to accordance with the standards set forth equipment, in which a shoving or
more easily investigate claims that the in § 217.9(g)(1) through (5) of this pushing movement is the initial
challenge had merit or the railroad is chapter. Of course, any records required movement that allows equipment to roll
not properly applying the Federal by this section may be maintained in free without power attached. The
regulations. either written or electronic form at the addition of paragraph (a)(2) is intended
FRA did not propose, but has added, option of the railroad. to clarify that this section does not
paragraph (e) to address recordkeeping apply to the rolling equipment once it
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and record retention issues pertaining to Section 218.99 Shoving or Pushing is free rolling. It would be impossible to
the good faith challenge procedures. For Movements engage in this type of acceptable
example, in the NPRM, FRA required Although the majority of this section switching activity if a determination
each railroad to maintain written remains the same as the proposed rule, would need to be made that the ‘‘track
procedures, but did not specify where a number of changes have been made in is clear’’ prior to each release of a free

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8476 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

rolling car. Therefore, the rule does not performing covered service under the overseeing the movement. The
apply to kicking, humping, or dropping hours of service laws. unrelated task would most likely be a
cars as FRA does not consider those Paragraph (b)(2) of the final rule work related activity, but certainly tasks
activities to be controlled shoving or contains the requirement that during the of a personal nature could be considered
pushing movements. Furthermore, shoving or pushing movement, the significantly distracting. Any unrelated
FRA’s experience is that each railroad employee controlling the movement task that would remove the person from
that permits these activities maintains shall not engage in any task unrelated to a location where oversight could be
operating rules that require employees the oversight of the shoving or pushing effectively performed is strictly
to protect free rolling equipment from movement. This requirement, which prohibited. The following are not
traveling over highway-rail grade was not in the proposed rule, was added significantly distracting activities and
crossings, pedestrian crossings, and to address a concern brought to FRA’s are arguably not even ‘‘tasks:’’
yard access crossings. FRA is rejecting attention following the fatal accident momentary glances away from the
the idea of regulating the movement of involving a remotely controlled direction of movement; acknowledging
free rolling equipment initiated by a movement that led to FRA’s issuance of
another person’s presence; and
shoving or pushing movement because Safety Advisory 2007–01. 72 FR 2333. It
sneezing. In contrast, the filling out of
we have not seen an increase in the was also a position raised by BMWED,
any form, e.g., a switch list, would be
number of accidents/incidents in this UTU and BLET in their comments. In
both the NPRM and this final rule, the a distracting, unrelated task that can not
area attributed to human factor causes;
preamble addresses the problem that be safely accomplished while the
of course, if we document an increasing
remote control operators may not movement is occurring.
trend of such accidents/incidents, FRA
will consider whether to initiate a always have complete situational FRA acknowledges that its adoption
rulemaking. awareness of the movement even if the of the requirement in paragraph (b)(2)
As specified in paragraphs (b) through operator is observing the movement. will not prevent all accidents. A rule
(d), shoving or pushing movements can Obviously, if a remote control operator that requires a controlling employee to
be made safely if precautions are taken. or other employee controlling the continuously observe the leading end of
This section states those minimum shoving or pushing movement is the movement might be more effective
precautions and requires that each distracted by engaging in an unrelated in preventing accidents; however, as
railroad have in effect specific operating task, that person’s disengagement with FRA stated earlier, a ‘‘continuous
rules incorporating the precautions. The the movement, even briefly, may observation’’ requirement would force
precautions take direct aim at those increase the probability or severity of an more employees to either walk or ride
human factor causes that have been accident/incident. For example, in the the point—creating an even greater
identified as causing the increasing accident in Manlius, New York that was vulnerability that someone could get
trend of noncompliance and accidents. the subject of Safety Advisory 2007–01, hurt. An employee walking the point
As specified in paragraph (e), there are FRA raised the issues of ‘‘multi-tasking’’ could slip, trip, or fall, and an employee
other movements that could be and trying to accomplish other tasks riding the point could be injured or
considered shoving or pushing that cause the person to divert attention killed in any collision with another
movements but FRA believes these from providing point protection. These piece of rolling equipment. In addition,
other movements can be treated are two separate issues. The issue of this final rule’s required determination
differently as they are safe if certain ‘‘multi-tasking’’ as raised in the notice that the track is clear prior to initiating
operating conditions are met. involved a remote control operator who the shoving or pushing movement
Paragraph (b)(1) requires that prior to allegedly operated from the passenger should substantially reduce the
rolling equipment being shoved or seat of a moving motor vehicle; such likelihood of any collisions. That is, a
pushed, the locomotive engineer and moves are inherently fraught with determination that the track is clear
the employee directing the move shall hazards, although this was not the cause
includes the determination that ‘‘the
be required to participate in a job of this accident/incident. The issue of
briefing which will cover the means of portion of the track to be used is
diverted attention occurred after the
communication to be used and how unoccupied by rolling equipment, on-
operator determined that the track was
protection will be provided. The job track maintenance-of-way equipment,
clear for the entire length of the
briefing requirement in this paragraph, and conflicting on-track movements.’’
movement; instead of looking down the
which remains the same as the proposed track waiting for his train to come into The application of FRA’s final rule
paragraph, requires that the locomotive view, FRA’s investigation suggested that reduces the likelihood of an accident
engineer (conventional or remote the remote control operator (RCO) may between a carman operating a pickup
control operator) shall have a job have been attending to duties unrelated truck across a yard crossing if the
briefing detailing the method of to the movement as the RCO did not pickup truck is crossing the track at a
communication used to relay observe the collision and initiated a type of yard crossing to be protected
information, e.g., radio, hand signals, or brake application only after hearing a (i.e., a ‘highway-rail grade crossing’ or
pitch and catch. If the employee radio transmission from the yardmaster. ‘‘yard access crossing’’ as those terms
providing protection is not part of the By requiring that the employee are defined under § 218.93). In addition,
crew, the job briefing shall include how directing the movement not engage in the severity of a collision between a
that qualified employee will provide any task unrelated to the oversight of shoving or pushing movement and off-
that protection; for example, if a the movement, the regulation increases track maintenance-of-way equipment
yardmaster is the qualified employee, the probability that the controlling may be reduced by an alert employee
the conductor directing the move would employee will be in a position to reduce protecting the point who responds
explain in the briefing that the the severity of any accident that might quickly to stop the movement.
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yardmaster intends to provide point occur. FRA considers a ‘‘task unrelated Meanwhile, railroad employees
protection by viewing a monitor that to the oversight of the movement’’ to be operating off-track machinery will need
provides a real-time image of the track any activity that carries significant to continue to be careful to follow
from a camera set up in the yard. Under potential to distract the person directing railroad operating rules that require
this scenario, the yardmaster would be the movement from adequately them to protect themselves when

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crossing tracks at unprotected yard observation for the entire duration of the both required that a crewmember or
crossings. movement. Further discussions at the qualified employee make a visual
Former paragraph (b)(2), which has RSAC working group meetings raised determination. This repetitive issue has
been redesignated as paragraph (b)(3) additional concerns. Both labor and been resolved by removing the visual
states the requirements for establishing management representatives were determination requirement from the
point protection during shoving or concerned that the requirement meant ‘‘track is clear’’ definition.
pushing movements. The rule requires that every shoving or pushing The final rule differs from the
that only a crewmember or other movement would require an employee proposed rule in that the determination
qualified employee shall provide point to be in position to watch the leading that the track is clear no longer
protection. In this context, end of the movement even when doing explicitly requires that the
crewmembers or qualified employees so would place the employee in danger. determination can be made ‘‘either
include remote control operators The proposed rule would have required within the range of vision or for the
working together, members of other employees watching shoving and complete distance the equipment is to
train crews, and other employees, pushing movements to walk greater be shoved or pushed.’’ FRA believes this
regardless of job title, who are qualified distances than most current operating proposed phrase merely added
to perform the job (see definitions of rules and practices require, the result extraneous language, and thus it has
‘‘employee’’ and ‘‘qualified’’ in this being a greater likelihood of been deleted from the final rule. As a
subpart). The requirements of this experiencing slip, trip or fall injuries. practical matter, the deletion of this
section address work that is ‘‘covered FRA agrees with these comments. We phrase should not have any impact on
service’’ under the hours of service certainly did not intend to reduce one how an employee provides point
laws. 49 U.S.C. 21101, et seq. Thus, to kind of accident only to increase protection. If a crewmember or other
be a qualified employee, the employee another type. qualified employee responsible for
will need to receive instruction and AAR suggested an alternative to ‘‘the
controlling a shoving or pushing
testing, be subject to Federal regulations duration of the shoving movement’’
movement can ensure that every
controlling alcohol and drug use and proposed requirement. AAR’s
requirement specified in the definition
hours of service recordkeeping provided suggestion was to change the first
of track is clear has been met, the
for, respectively, in parts 217, 219 and sentence in paragraph (b)(2)(i) to read as
employee may initiate and continue the
228 of this chapter. The purpose of follows: ‘‘[v]isually determining that the
movement for the full distance of the
requiring a qualified employee, as track is clear and will remain clear
opposed to any employee, is to prevent either within the range of vision or for movement. For example, if a shoving
persons that may not be qualified (e.g., the complete distance the equipment is movement of less than 100 car lengths
taxi drivers, crane operators, or clerks) to be shoved or pushed.’’ This is to be made onto track that is capable
from making safety sensitive operating alternative is similar to FRA’s proposal of holding 100 cars and a crewmember
decisions without the proper instruction and many current railroad operating or other qualified employee observes
and safeguards in place. Incidently, if an rules, however, the plain meaning of the that the track is clear for the entire
unqualified person were to perform this alternative does not reflect how it is length of the track, the employee may
work in violation of the rule, the person typically interpreted. The plain meaning initiate movement onto or down the
would still have to be accounted for of this alternative appears to also track; as the shoving movement
under the hours of service laws or the contain the expectation that a continues, the employee will provide
railroad would incur additional continuous, visual observation for the updates to the locomotive engineer, as
liability. entire duration of the movement is necessary, until the entire movement is
FRA has decided that some of the required even if the ‘‘the duration of the complete. Meanwhile, if the employee
proposed requirements in paragraph shoving movement’’ language has been providing the visual determination that
(b)(2)(i) needed alteration based on removed. Meanwhile, a near universal the track is clear can only see part of the
comments received and the position was that employees can safely way down the track to be shoved or
consideration of the facts surrounding make shoving or pushing movements pushed, and does not have the option to
the accident that led to the issuance of without continuously observing the travel ahead of the movement to
Safety Advisory 2007–01. The purpose leading car for the entire distance of the determine that the track is clear for the
of this paragraph remains the same, movement. The key to a safe move is the entire length of the movement, the
although the final rule’s requirements determination that the portion of the employee shall only be permitted to
are altered from that originally track to be used for the intended move initiate movement for the distance that
proposed. Shoving accidents often occur is clear. The determination that the the employee can visually ensure that
because a train crew makes a shoving track is clear will be made prior to the track is clear. In this second
movement without determining that the initiating a shoving or pushing example, the facts are the same except
track is clear in the direction of movement, but additional portions of that there is curvature in the track that
movement. The proposed rule suggested track may be determined to be clear does not allow the observing employee
a requirement that the employee during the duration of one continuous to see more than 20 car lengths at a
providing point protection visually shoving or pushing movement. time; in this situation, the employee
determine, for the duration of the Furthermore, FRA did not agree with may initiate movement onto or down
shoving or pushing movement, that the AAR’s suggestion to include the phrase the track but must have either
track is clear within the range of vision ‘‘and will remain clear’’ as this phrase continuous visual contact with the
or for the complete distance to be adds a condition that is outside of the locomotive engineer or be in radio
shoved or pushed. AAR commented that control of the employee providing the communication with the locomotive
the phrase ‘‘the duration of the shoving point protection. engineer, so as to provide distance
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movement’’ is problematic as there After considering the comments, FRA instruction on how far the locomotive
could be instances where an employee’s realized that its proposed rule was also engineer may safely shove, until the
vision is momentarily obscured and so flawed in that it was repetitive. The shoving or pushing movement is
it would not be possible to always definition of ‘‘track is clear’’ and the complete. In other words, there is
provide a continuous, visual proposed point protection paragraph nothing in this rule that prohibits

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incremental or multiple determinations mandatory appendix is to establish is to be in a position to observe that


that the track is clear until the complete safeguards for establishing technology grade crossings are not obstructed.
distance to be shoved or pushed is driven point protection. The alternative Paragraph (c) also states two
traversed. would continue the haphazard additional requirements for remote
In paragraph (b)(3), the term ‘‘rolling application of such technology, without control operations during shoving or
equipment,’’ which is defined in appropriate assurances of Federal, State, pushing movements. The first
§ 218.5, is used. The definition of or local governmental input when such additional requirement, paragraph
‘‘rolling equipment’’ states that the term technology potentially impacts the (c)(1), is necessary so that the remote
‘‘includes locomotives, railroad cars, general public. control operator, either directly or
and one or more locomotives coupled to Other technological means may indirectly, can confirm that the
one or more cars.’’ Thus, the definition include, but are not limited to, a movement is observed moving in the
of ‘‘rolling equipment’’ explicitly completely circuited track indicating direction intended. If the remote control
includes locomotives. Meanwhile, FRA track occupancy, and electronic switch operator does not confirm or receive
is aware that some railroads may position indicators. AAR requested that confirmation that the equipment is
incorrectly consider any movements FRA consider shove lights to be an traveling in the intended direction, the
involving consists made of locomotives ‘‘equivalent technological means.’’ operator must immediately stop the
alone not to be shoving or pushing Shove lights are lights that are movement. Accident reports indicate
movements. By adding that lite sequentially circuited on the ends of that remote control operators who have
locomotives are also covered in tracks to indicate a shoving movement’s forgotten which way the controlling
paragraph (b)(3) and defining ‘‘lite approach to the opposite end of a track. locomotive is headed may
locomotive consist’’ in this subpart, Shove lights are limited, however, as unintentionally make a reverse
FRA is ensuring that lite locomotive they do not show if the track is movement when a forward movement
consists are covered by the shoving or occupied between the entrance of the was intended, or vice versa; had these
pushing movement requirements. To do track and the beginning of the track operators been abiding by this rule, at
otherwise would permit lite locomotive circuit; in other words, shove lights least some of these types of accidents
consists to shove blind without alone cannot provide absolute could have been avoided by abiding by
adequate point protection. notification that the track is clear of this rule. Further discussion on this
FRA has expressed the intention to equipment. Consequently, FRA is issue may be found in the
provide railroads and qualified willing to consider shove lights as an SUPPLEMENTARY INFORMATION section
employees with the option of making acceptable technological alternative to titled ‘‘Situational Awareness.’’
the visual determination required in visually protecting the point as long as FRA suggests that each railroad
paragraph (b)(3)(i) with the aid of either: (1) The track is completely instruct its remote control operators
monitored cameras or other circuited to indicate occupancy; or, (2) that, whenever possible, the operator or
technological means, provided that the a visual determination is made that the crewmember should view the
technological means and attendant track is clear to the beginning of the controlling locomotive when
procedures provide an equivalent level circuited section of the track. determining the direction of movement,
of protection to that of a direct visual The requirements listed in proposed as opposed to any other piece of
determination. Railroads shall ensure paragraph (b)(2)(ii), redesignated as equipment in the movement. It is not
that any monitored camera have paragraph (b)(3)(ii), state that a always logistically possible or safe for
sufficient resolution and real time crewmember or other qualified the operator or crewmember to have
coverage to provide protection equal to employee give signals or instructions direct visual contact with the
a direct visual determination. necessary to control the movement. controlling locomotive when initiating
Concerning attendant procedures, one Such signals or instructions may be movement—which explains why FRA is
such procedure may be for an employee made verbally, i.e., either via face-to- not requiring it. However, where it is
viewing a monitor to communicate face or radio communication. However, logistically possible and safe to do so,
updates to the locomotive engineer or any effective method of communication that should be the preferred method. If
controlling crewmember at appropriate is acceptable. For example, some a person is viewing the direction the
intervals. FRA equates the employee acceptable forms of communication controlling locomotive moves, the
monitoring the camera to the employee include, but are not limited to, hand person would have a greater chance of
controlling the movement who must not signals, whistle signals, and electronic observing a problem with the
engage in any task unrelated to the signals utilizing remote control locomotive becoming uncoupled from
oversight of the movement; thus, each technology. the rest of the movement or a similar
railroad utilizing such cameras shall In paragraph (c), FRA requires that all problem if a coupler broke between
implement attendant procedures remote control movements be treated as other equipment in the movement. In
limiting any of the monitoring shoving or pushing movements, except the alternative, as intended by
employee’s ancillary duties that might when the remote control operation is paragraph (c)(1), an operator or
distract from the employee’s ability to being conducted like a conventional crewmember watching the equipment
provide continual visual determinations pulling operation such that the operator for the direction of movement will need
and communication. controlling the movement is riding the to be cognizant of time and distance
FRA also amended paragraph (b)(3)(i) leading locomotive in a position to from the controlling locomotive so that
to add a requirement that if a railroad observe conditions ahead in the immediate action may be taken to stop
intends to use monitored cameras or direction of movement. Under this the movement if the movement is
other technology to determine that the situation, the operator is riding the initiated but not observed to be moving
track is clear, the railroad is required to point in a position to visually determine within expectations.
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abide by the procedures prescribed in that the track ahead of the movement is The title of paragraph (c) has been
this section as well as the additional clear, and is certainly in a position to changed from ‘‘Remote control
requirements prescribed in appendix D determine the direction the equipment movement requirements’’ in the NPRM
to this part. As explained in the analysis is moving. One particular reason for a to ‘‘Additional requirements for remote
to appendix D, the addition of this remote control operator to ride the point control movements.’’ The reason for the

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change in title is to emphasize that the facility database is acceptable, FRA crew certainly does not have any prior
requirements in paragraph (c) apply to finds that 49 CFR part 236, subpart H determination to fall back on. Paragraph
shoving movements implemented with and the corresponding appendix C to (d)(3) provides the requirements for
remote control locomotives and adds part 236 (‘‘Safety Assurance Criteria and determining that a prior determination
additional requirements to those general Processes’’) contains appropriate safety that the track is clear may be relied on.
movement requirements described in analysis principles. These changes, which are further
paragraph (b). In other words, by In paragraph (d), FRA recognizes that described below, should better reflect,
changing the title, we are hoping to many railroads utilizing remote control in hopefully what will be considered
avoid confusion that some railroads technology will create a designated area plain language, what a remote control
might perceive paragraph (c) as the only of track, controlled by a remote control crew needs to do to determine that the
requirements for shoving movements operator, that can make a remote control track is clear so that railroads may take
implemented with remote control operation more efficient; this area is advantage of shoving or pushing within
locomotives. Comments were not called a remote control zone and it is a remote control zone.
received regarding paragraph (c). defined in this subpart. When a remote Paragraph (d)(1) specifies that the
Paragraph (c)(2) adds another control zone is activated, a designated remote control zone exception to a
requirement for remote control remote control operator has the separate track is clear determination for
movements that was suggested in the authority to deny other movements each shoving or pushing movement
preamble of the NPRM, but was not part entry into the tracks designated as applies only when the controlling
within the zone. However, it is not until locomotive of the remote control
of the proposed regulatory text. At the
the remote control crewmembers movement is on the leading end in the
end of the section-by-section analysis
determine that a particular segment direction of movement. This describes a
for this section in the NPRM, FRA
meets the definition of ‘‘track is clear’’ movement that is typically referred to as
raised concerns regarding the reliance
that the operation may shove, push, or a remote control movement occurring
on technology used to contain remote
pull cars into the cleared track segment on the pull-out end, and that reference
control operations within zones, where
of the zone as required in paragraph is made in this paragraph. When the
remote control operators cannot directly
(b)(3). controlling remote control locomotive is
observe the far end of the pull-out Paragraph (d) permits the point not located on the leading end in the
movement. Such technology is used to protection required by paragraph (b)(3) direction of movement, the remote
prevent incursions into other rail to be provided by a prior determination control crew cannot rely on a prior
operations. The NPRM noted that that the track is clear for a remote determination that the track is clear and
‘‘[a]lthough the rule text does not control operation that is shoving within shall, instead make a separate track is
contain language on this point, FRA an activated remote control zone, as clear determination for each shoving or
requests comment on whether such long as the movement will take place on pushing movement regardless of
technology should be required to fail the pull-out end, the zone is not jointly whether the operation is to take place
safe in design or at least include occupied, and certain conditions are within the remote control zone. FRA
redundant safeguards.’’ FRA did not met for the prior determination that does not subscribe to the view that an
receive any comments on this issue and provides a reasonable assurance that the entire yard can be characterized as a
has decided to act to address the track is clear. If conditions change, such remote control zone and, as long as it is
concern. The safety concern is that that the track is no longer clear, a new not jointly occupied, the remote control
without a specific requirement some determination that the track is clear crewmembers are free to shove or push
railroads might try to implement must be made. This paragraph has anywhere in the zone without
technology that is not demonstrated to undergone substantial revision from the determining that the track is clear for
be safe and therefore provides a false NPRM, although the underlying concept each shoving or pushing movement;
sense of protection to remote control has remained unchanged. In the NPRM, again, the reason FRA disagrees with
crews. Without some kind of standard the proposed rule mis-characterized this this view is that we believe that is an
for concluding that the technology has requirement as an exception to the point unsafe practice and that is why the rule
either been demonstrated to be failsafe protection requirement, when we only permits the zone exception to
or demonstrated to provide suitable intended and described a point apply to remote control movements
redundancy to prevent unsafe failure, a protection requirement. The final rule when the controlling locomotive of the
remote control crew could unreasonably clarifies FRA’s intent that point remote control movement is on the
conclude that the technology is safe protection, and all the general leading end in the direction of
enough to stop a movement when such movement requirements under movement.
reliance is unfounded. Given this paragraph (b), are applicable to remote Paragraph (d)(1) is changed from the
inevitable reliance, failsafe or redundant control movements in the zone when NPRM to reflect that the remote control
technology is required to prevent the remote control movement is to take movement does not need to be
collisions and derailments at the advantage of the zone setup. Thus, ‘‘operated from a controlling
perimeter of these zones. The pull-out when the movement occurs in an locomotive’’ to fit the exception, but
protection technology would not likely activated zone, on the pull-out end, and instead ‘‘the controlling locomotive’’ of
be relied upon as the typical method of is not jointly occupied, it is possible for the movement shall be on the leading
stopping the movement from leaving the the remote control operator to rely on a end in the direction of the movement.
zone, but might be used to expedite a prior determination that the track is This change was made to prevent future
movement where the crew would clear rather than making a separate confusion that the proposed language
ordinarily be slowed down by having to determination for each shoving or might be interpreted to only apply when
count cars and estimate the length of the pushing movement. a remote control operator was actually
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movement in relation to the Paragraph (d) states the obvious that, on the controlling locomotive, when it
configuration of the facility. When at some point in time, after the zone is was intended to allow for the operator
determining whether the technology, activated, an initial determination must to either be on the locomotive or
such as transponders backed up by a be made that the track is clear. If there someplace else when the controlling
global positioning system (GPS) with a is no initial determination, then the locomotive on the leading end in the

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direction of movement is operated. In otherwise, any relieving crew would of different zones. (For the difference
other words, the amendment is made to need to make an initial determination between a remote control area and a
specifically include remote control that the pull-out end of the track is remote control zone, please see the
operations no matter where the operator clear. section analysis for the definition of
is located. FRA has added a third option, not ‘‘remote control zone’’ under § 218.93).
FRA has switched the numbers of proposed, that would permit the Likewise, if another crew enters and
proposed paragraphs (d)(2) and (d)(3) in crewmembers from a jointly occupying departs the remote control zone, that
an effort to lay out the sequence of crew to directly communicate to a last jointly occupying crew cannot
determinations in a logical order. remote control crewmember that the contact just any remote control
Paragraph (d)(2) requires that the zone zone is no longer jointly occupied and crewmember working in the area, but
may not be jointly occupied at the time meets the requirements for track is clear. instead is required to directly
that a remote control crew exercises the This option is based on an RSAC communicate with a remote control
exception permitting the reliance on a consensus item that recommended crewmember from the crew of the zone
prior determination that the track is allowing the verbal determination that just departed. To allow otherwise would
clear. This condition is directed to the ‘‘track is clear’’ between the crews mean that, at best, the last jointly
prevent collisions between a remote jointly occupying the remote control occupying crew would pass on the
control operation that is controlling the zone, provided that it is a direct determination that the track is clear
zone, and any equipment or switches communication between the crews indirectly, and, at worst, not at all.
controlled or manipulated by a jointly involved, and not through a third party. As specified in paragraph (e), shoving
occupying crew. Thus, this condition The RSAC’s rationale is that a verbal, or pushing movements are safe under
means that if there is a jointly direct communication to determine certain operating conditions and, thus,
occupying crew, the remote control ‘‘track is clear’’ between remote control FRA chooses to exempt these listed
crewmembers shall determine that the crews is currently permitted at shift operations from the requirements in
track is clear for each shoving or changes, so why not after a joint paragraphs (b) through (d) under the
pushing movement and shall not rely on occupancy? After further review of specified conditions. One, paragraph
a prior determination that the track is FRA’s accident database, we cannot find (e)(1) exempts push-pull operations
clear. FRA has deleted from the sufficient justification to disallow this when operated from the leading end in
proposed requirement the phrase ‘‘and practice. If FRA develops any accident the direction of movement because if a
has not been jointly occupied since the data to suggest that the practices cab control car is on the leading end of
last determination that the track is permitted by paragraphs (d)(3)(ii) or (iii) a movement and a locomotive engineer
clear.’’ This condition has been deleted are unsafe, we will consider amending is operating the train from the cab
because an amendment to proposed the rule. The addition of this third control car, the operation is as safe as a
paragraph (d)(2), redesignated (b)(3)(iii) option is largely based on comments conventional locomotive operation that
addresses the issue by diverting from received by the AAR stating that this does not involve shoving or pushing.
this proposed requirement. That is, option is currently implemented safely Two, paragraph (e)(2) also describes a
paragraph (b)(3)(iii) permits the last by its members. We want to emphasize situation where a locomotive engineer is
jointly occupying crew to make a direct that the ‘‘direct’’ communication operating a train from the leading end
relay of the track is clear determination requirement means that the crew that in the direction of movement, albeit
to the remote control crewmembers. The completed its joint occupation of the with assistance from other power. That
basis for this latter change is that zone must speak directly with one of the other power assisting in the movement
accidents have generally occurred when remote control crewmembers. Thus, it is may be occupied and operated by a
jointly occupying crews did not seek unacceptable for a yardmaster or other locomotive engineer, i.e., a manned
permission into the remote control zone, employee to relay the information helper locomotive, or an unmanned
not that the jointly occupying crews between the two sets of crewmembers. locomotive, i.e., a distributed power
failed to provide accurate information There is a greater chance of a locomotive. Because the additional
regarding whether the track was left communication error if information is power may be located in the back or the
clear. This issue is explained in more allowed to be relayed from someone middle of the train, this type of
detail below. who does not have firsthand operation could be considered a shoving
Paragraph (d)(3) describes the three information. Indirect communication or pushing movement. The exception
methods for a remote control crew to reduces the likelihood that a remote clarifies that as long as a manned
determine whether a prior control crewmember would have the locomotive is being operated from the
determination that the track is clear is option to ask the crew that previously leading end of the train in the direction
acceptable when the controlling jointly occupied the zone a follow up of movement, this type of operation will
locomotive of the remote control question. ‘‘Directly communicate,’’ in not be considered a shoving or pushing
movement is on the leading end in the this instance, does not mean that movement that must comply with
direction of movement and the zone is crewmembers are prohibited from paragraphs (b) through (d). FRA has
not jointly occupied. Paragraph (d)(3)(i) communicating by radio, or any other made minor changes to this paragraph
describes that, if the remote control communication that is not face-to-face. from the NPRM in order to clarify that
crewmembers themselves made the As further clarification, the rule the manned helper locomotives or
prior determination, it is acceptable and includes the description that ‘‘directly distributed power shall be ‘‘assisting a
a separate determination is unnecessary communicates’’ means ‘‘not through a train’’ when ‘‘the train is being’’
for each movement. Paragraph (d)(3)(ii) third party.’’ To illustrate this point, operated from the leading end in the
carries over the option from the please consider the situation where two direction of movement for the exception
proposed rule that one remote control remote control operations are working to apply.
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crew may pass onto a relieving remote side-by-side in the same remote control Pursuant to paragraph (e)(3), the third
control crew an activated zone that area. The two operations cannot share a operational exception to the shoving or
meets the definition of track is clear. pull-out end safely, because that would pushing minimum requirements set out
Some railroads currently allow for this mean there is joint occupation, and, in paragraphs (b) through (d) of this
transfer for efficiency purposes; thus, each operation must be in control section is the allowance of the

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performance of roadway maintenance qualified ‘‘employee,’’ as defined in this establishes minimum requirements for
activity under the direct control of a subpart, must be stationed at the preventing equipment from fouling
roadway worker performing work in crossing and have the capability to connecting tracks unsafely, and that
accordance with railroad operating rules communicate with trains in sufficient each railroad implement procedures
specific to roadway workers. In other time to inform the train of the condition that will enable employees to identify
words, a crewmember or qualified of the crossing; the rule does not specify when the equipment is fouling. The
employee is not required to provide the method of communication as the purpose for requiring that each railroad,
point protection when a train crew is key issue is that the communication be railroad officer, supervisor, and
working under the direct control of a effective. In paragraph (e)(4)(v), FRA employee shall be considered in
roadway worker and that roadway uses the terms ‘‘interlocking limits,’’ violation of this section when a railroad
worker can provide adequate point which is defined in § 218.5 of this part, operating rule that complies with this
protection. For example, if a ballast or and ‘‘controlled point limits,’’ which is section is violated is so that FRA has the
work train is operated by a train crew, undefined but FRA considers as having authority to enforce this regulation as
a roadway worker may direct the ballast the same meaning as ‘‘interlocking opposed to merely requiring that each
or work train crew to move the train in limits.’’ Interlocking limits means the railroad maintain and have in effect
order to perform the maintenance tracks between the opposing home such a rule. In order to fully understand
activity. This exception would not signals of an interlocking. In paragraph this section, one must consider FRA’s
permit a railroad to have an operating (e)(4)(v)(C), a crewmember is in a definitions of ‘‘clearance point’’ and
rule allowing a roadway worker to position to determine that the train’s ‘‘foul or fouling a track’’ under § 218.93.
direct a train crew on logistical or movement has occupied the circuit Paragraph (b) sets forth the general
revenue moves and such action would controlling a signal such that the rule that rolling and on-track
violate paragraph (c) of this section. crewmember has the ability to maintenance-of-way equipment not be
determine that it is the leading wheels left where it will foul a connecting track
Paragraph (e)(4) permits an exception
of his or her own movement that has except as permitted in paragraphs (b)(1)
from the shoving and pushing rules
activated the signal circuit. through (b)(4) discussed below. This
because few of the shoving or pushing
paragraph differs from FRA’s proposed
accidents have occurred on a main track Section 218.101 Leaving Rolling and rule in that each of the two proposed
or signaled siding. From 2002 through On-Track Maintenance-of-Way exceptions were divided into two
2005, only about 5 percent of shoving or Equipment in the Clear simpler exceptions. We hope that by
pushing accidents occurred on main The title of this section has changed breaking out the two proposed
track. However, in order to make this from the NPRM, as well as a exceptions into four exceptions that the
exemption work, a long list of corresponding change in paragraph (b), section will be easier to understand.
conditions apply that would provide an to clarify that the section is intended to Paragraph (b)(1) permits equipment
equivalent level of safety to that of the apply to both rolling and on-track standing on a main track to foul a siding
requirements found in paragraphs (b) maintenance-of-way equipment. In the track switch if the fouling switch is
through (d) of this section. The NPRM, FRA used the generic term lined for the main track on which the
requirements should look familiar to the ‘‘equipment’’ and assumed that the term equipment is standing. For example, it
industry as the requirements follow would be understood to include both is permissible for a train on the main
commonly used railroad operating rules. types of equipment. Rather than risk track to be stopped at an absolute signal
See General Code of Operating Rules confusion regarding whether the with the rear of the train fouling a siding
(GCOR) 5th Edition, (effective Apr. 3, regulation only applies to rolling switch lined for the main track upon
2005) Rules 6.5, 6.6, and 6.32, and equipment, the rule now specifies that which the train is standing.
Northeast Operating Rules Advisory both rolling equipment and on-track Additionally, this would prohibit the
Committee (NORAC) Rules 116 and maintenance-of-way equipment are switch that is being fouled from being
138e. The following clarification is covered by this section. thrown underneath the train while it is
provided for a few of the requirements The requirement proposed in fouling the switch. See also
that may not be quite as evident as the paragraph (a) has been revised, but the § 218.103(b)(4) and (b)(7). Signal
others. Paragraph (e)(4)(i)(A) requires reasons behind the requirement remains systems and main track authority rules
that if another movement or work the same. The reasons behind this should protect such movements from
authority is in effect within the same or paragraph are to ensure that (1) each approaching trains.
overlapping limits, the shoving or railroad adopt and comply with an Paragraph (b)(2) permits equipment
pushing movement shall not be initiated operating rule which complies with the standing on a siding to foul a main track
until the leading end of the movement requirements of this section; and (2) switch if the fouling switch is lined for
is protected by a qualified employee. when any person including, but not the siding on which the equipment is
Paragraph (e)(4)(ii) requires that limited to, each railroad, railroad standing. While this is permissible, it is
movement is limited to the train’s officer, supervisor, and employee obviously not safe to do so unless
authority because the danger of an violates any requirement of an operating movements on the main track are
accident increases substantially when a rule which complies with the required to operate prepared to stop for
train shoves beyond the limits of its requirements of this section, that person the switch.
current authority. The requirement in shall be considered to have violated the Paragraph (b)(3) permits equipment
paragraph (e)(4)(iv) is met by meeting requirements of this section. The NPRM that is standing on a yard switching lead
either (A), (B), or (C), as meeting any was not intended to mean, but could track (commonly referred to as a lead
one of these three requirements should possibly have read, that each person track, switching lead, or ladder track) to
ensure safe movement into and over a was only to uphold and comply with foul a yard track if the switch is lined
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highway-rail grade crossing or the railroad’s operating rule and not the for the yard switching lead track upon
pedestrian crossing as those terms are regulation itself. The revisions to this which the equipment is standing.
defined in the definitions section of this paragraph are intended to clarify FRA’s Conversely, it is not permissible for
subpart. To meet the requirement of intent that each railroad adopt and equipment to be standing on a yard
paragraph (e)(4)(iv)(B), a designated and comply with an operating rule which track and foul the yard switching lead

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track, regardless of the position of the clearance points are not identified on or obtained from the employee controlling
switch on which the equipment is near the track, railroads must institute the track prior to leaving equipment in
standing (fouling). In simple terms, it is procedures for instructing employees on the foul. FRA appreciates BLET’s
permissible to occupy a yard switching how to calculate clearance points; e.g., suggestions because each suggestion
lead track and foul a track connected to a railroad may choose to implement a provided the basis for useful RSAC
it, but it is not permissible to occupy the procedure requiring employees to stand discussions exploring the intricacies of
connecting track in a manner that fouls next to the rail and extend an arm to leaving equipment in the clear. In the
the yard switching lead track. simulate the width of equipment. Great end, though, FRA did not adopt BLET’s
Paragraph (b)(4) permits equipment to care should be used in instituting suggestions because adding such
be left where it will foul a connecting procedures for determining clearance suggestions would likely complicate
track when the equipment is on an points so that the margin of error is what FRA believes is a fairly clear and
industry track beyond the clearance appropriate where employees are concise rule.
point of the switch leading to the permitted to ride the side of a car and Finally, FRA acknowledges that some
industry. During the RSAC process, as the clearance point would be further railroads have yard tracks or other types
several commenters raised the issue that back on the track for employees with of track arrangements outside of a yard
when picking up or setting off cars at an bigger or longer bodies than the average which are not described as exceptions to
industry customer, a railroad is often person. This section is not intended to the general requirement in paragraph
faced with limited industry track on apply to close clearance as it relates to (b), and fouling equipment under these
which to set off or pick up cars. The buildings, loading docks, or doorways, particular track arrangements may not
problem of limited track at some although a railroad may choose to pose a real safety concern. Because of
industries would make compliance with provide procedures for implementing the many different types of track
this rule extremely difficult within safe operations under such arrangements that are atypical, it would
those industries and could potentially circumstances. be difficult to craft a rule that fully
have a detrimental economic effect on FRA received a comment from the encompasses every such arrangement
those industry customers, as well as the AAR to delete this entire section and excepts those that pose no danger.
railroads that service those industry because, in AAR’s view, this section Where there is truly an atypical
customers. FRA’s accident/incident data duplicates requirements found in other arrangement that appears to violate this
does not reflect that fouling within an sections of the NPRM. After discussions section but poses no true safety hazard,
industry has been a problem. FRA in the RSAC process, the RSAC FRA intends to consider the safety
accident data indicates that of the 5% achieved consensus that this section is implications when deciding whether to
total human factor accidents caused by necessary, and recommended that FRA exercise its enforcement authority.
equipment left in the foul during the retain it. The requirement that
Section 218.103 Hand-Operated
four-year period 2003 through 2006, equipment not be left where it will foul
Switches, Including Crossover Switches
only 0.5% (1⁄2 of one percent) occurred other tracks is a long-standing operating
on industry tracks. Further, industries rule in the industry which is merely In the NPRM, this section was titled
are constantly moving equipment being Federalized to strengthen ‘‘Hand-operated Switches and Derails.’’
around within their plants for loading/ enforceability. Leaving equipment in the After the RSAC process had concluded,
unloading, or for other purposes, foul accounted for 5% of all human FRA considered the scope of this
thereby rendering the enforceability of factor accidents during the four-year section and decided that it covered
the regulation within industry tracks period 2003 through 2006. The RSAC several interrelated but separate issues.
somewhat dubious at best. Meanwhile, acknowledged that there are other By including so many requirements in
if an industry has limited track, and that elements in the NPRM that require the one section, the section appeared
track is crowded with rolling track to be clear prior to a pushing or disjointed. Consequently, this section
equipment, FRA expects railroads shoving movement, and for all hand- differs from the proposed section
servicing those industries to operate at operated switches to be properly lined because it contains only a portion of the
extremely slow speeds and with before fouling a track, and that these requirements found in proposed
particularly careful observation to requirements might appear, § 218.103. The rest of the proposed
protect all movements from anything perfunctorily, to obviate the need for a requirements have been redesignated
that may be potentially fouling the fouling rule. However, the RSAC also within §§ 218.105, 218.107, and
track. This change from the NPRM is recognized that leaving equipment in 218.109. Although each of these
based on an RSAC recommendation. the foul sets the stage for a potential sections contains slight modifications
FRA will certainly consider initiating a accident in the event one or more of the from the proposed requirements,
new rulemaking to include industry ancillary requirements in the regulation overall, the final rule does not differ
tracks in this section if accident/ are overlooked. In light of RSAC’s greatly in its requirement from what was
incidents increase due to fouling consensus recommendation, and FRA’s proposed.
equipment. view that a specific rule is useful to The requirement proposed in
Paragraph (c) requires that each reducing the many accidents attributed paragraph (a) has been revised, but the
railroad, whether at the system, to failing to leave equipment in the reasons behind the requirement remains
division, or terminal level, shall clear, FRA is retaining this section. the same. The reasons behind this
implement procedures for instructing FRA received several comments from paragraph are to ensure that (1) each
employees who handle equipment so BLET suggesting operational situations railroad adopt and comply with an
that the employees can identify where it may be possible to leave operating rule which complies with the
clearance points and avoid leaving equipment in the clear safely. For requirements of this section; and (2)
equipment out to foul. One way to example, BLET suggested that FRA when any person including, but not
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implement such procedures is to show prohibit leaving equipment in the foul limited to, each railroad, railroad
employees that there are readily where the authorized speed is greater officer, supervisor, and employee
observable clearance points on or near than restricted speed. Another BLET violates any requirement of an operating
the track, e.g., marks on the rails or ties suggestion was for FRA to add a rule which complies with the
indicating a clearance point. When requirement that permission must be requirements of this section, that person

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be considered to have violated the requires frequent job briefings at corresponds with the switch’s position.
requirements of this section. The NPRM important junctures. It is critical that These requirements specify the need for
was not intended to mean, but could employees know what is expected of the operating/verifying employee to take
possibly have read, that each person them before they start working, know a good, hard look at the switch. For
was only to uphold and comply with what is expected to happen if the work example, a proper observation would
the railroad’s operating rule and not the plan changes after work is initiated but deduce whether the switch points fit
regulation itself. The purpose for before the work is completed, and to properly against the stock rail, i.e. no
requiring that each railroad, railroad confirm whether all the work was gaps. The operating/verifying employee
officer, supervisor, and employee shall completed to everyone’s satisfaction and should certainly not be relying on
be considered in violation of this according to the operating rules. For second-hand knowledge of the switch or
section when a railroad operating rule experienced employees, each job derail’s position in verifying its
that complies with this section is briefing should not be a particularly position.
violated is so that FRA has the authority long meeting; in fact, FRA expects that Paragraph (b)(4) differs from the
to enforce this regulation as opposed to some job briefings may last less than proposed requirement in that FRA has
merely requiring that each railroad one minute, but the length of an added that when an employee visually
maintain and have in effect such a rule. adequate briefing will most likely determines that hand-operated switches
This section applies to all hand- depend on the complexity of the job. are properly lined for the intended route
operated switches, as that term is Proposed paragraph (b)(1) has been that the employee also visually
defined in § 218.93, including hand- redesignated as paragraph (b)(2). This determine that ‘‘no equipment is fouling
operated crossover switches. This paragraph sets forth the fundamental the switches.’’ If there is rolling
represents a departure from FRA’s requirement that an employee operating equipment close by, an employee may
current enforcement scheme which is or verifying a hand-operated switch’s have to identify the clearance points to
limited to hand-operated switches in position shall be ‘‘qualified,’’ as that determine whether the equipment is in
non-signaled territory as specified in EO term is defined in this subpart. It would fact fouling or it is safe to operate over
24. be easy for an unqualified person to the switch. See § 218.101. For example,
Paragraph (a)(2) has been added to make a mistake in switch alignment or if an employee can see that the switch
require that each railroad specify fail to recognize a defective switch is properly lined from the locomotive
minimum requirements for an adequate because, unlike a qualified employee, cab but is not absolutely certain that
job briefing concerning hand-operated the unqualified person is not trained on rolling equipment is in the clear, this
switches, including crossover switches. proper switch operation or on how to rule prohibits movement over the
This requirement was found in the detect a defective switch. It is exactly switch until a proper determination can
proposed rule in paragraph (i), but was these types of defective conditions that be made; in this example, the situation
redesignated in paragraph (a)(1). cause accidents and may be preventable will likely require that the movement be
Because this is such a fundamental by promulgation of this rule. stopped and a crew member get off the
requirement, it was redesignated at the Proposed paragraph (b)(2) has been locomotive or train to determine the
beginning of the section. As previously redesignated as paragraph (b)(3). This clearance points. If there is another
mentioned in the SUPPLEMENTARY paragraph establishes a requirement that method to safely determine the
INFORMATION section titled ‘‘Accident at each railroad have an operating rule clearance points, e.g., if the rail is
Graniteville, SC and Safety Advisory warning employees that each person marked, then the requirement may be
2005–01,’’ NTSB found that catastrophic who operates or verifies the position of satisfied by this alternative method for
accidents, such as the one at a hand-operated switch is individually determining the clearance points. FRA
Graniteville, SC, could be prevented by responsible for the position of the is not requiring that an employee
adequate job briefings. The requirement switch in use. The purpose of this disembark from a movement in all
is for each railroad to have its own rules paragraph is to remind an employee that instances to determine clearance points,
and procedures governing the minimum FRA may take enforcement action but is instead requiring that employees
requirements for a satisfactory job against the employee personally for a act responsibly when making this visual
briefing, which to FRA’s knowledge, willful violation. FRA hopes that the determination.
nearly all railroads already do. It is personal liability aspect of this rule will The issues addressed by proposed
essential that employees working reinforce among employees the critical paragraphs (b)(5) and (b)(6) have been
together know exactly what each importance of ensuring that hand- addressed by redesignated paragraph
person’s role is in the job, what the operated switches are left properly lined (b)(6). Paragraph (b)(5) had proposed a
methods of operation and protection before leaving the location of the switch. requirement that if the switch or derail
will be, and the order in which Proposed paragraphs (b)(3) and (b)(4) is equipped with a lock, hook or latch,
segments of the job are to be have been redesignated as paragraphs it must be in the hasp, before making
accomplished. With such knowledge, (b)(4) and (b)(5) respectively. These movements in either direction over the
one employee could recognize the paragraphs require employees to make switch. Proposed paragraph (b)(6)
mistakes of another and correct them certain observations. A slight referred to physically testing a hand-
before any operating rule violation or modification has been made to each of operated switch or derail’s lock to
serious accident occurred. these paragraphs by changing the phrase ensure it is secured. FRA stated in the
Paragraph (b) sets forth certain general ‘‘visually ensure’’ to ‘‘visually proposed section-by-section analysis,
rules for employees who operate or determine.’’ The reason for this change and we restate here that this regulation
verify the position of a hand-operated is to maintain consistent terminology does not require switches to be
switch. A reference to § 218.93 has been throughout this subpart. The equipped with locks, hooks or latches.
added so that anyone reading this requirements listed are to ‘‘visually FRA’s intention remains that employees
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section will understand that ‘‘hand- determine’’ that hand-operated switches must ensure that the switch is secured
operated switch’’ has a specific meaning are properly lined for the intended from unintentional movement of the
for this section and subpart. Proposed route, that no equipment is fouling the switch points before making movements
paragraph (i)(2) has been redesignated switches, that the points fit properly, in either direction over the switch.
as paragraph (b)(1). Paragraph (b)(1) and the target, if so equipped, Rather than confuse the requirements by

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getting into the tedium of explaining without moving the fouling cars. The or hook must be in the hasp. For
how to lock, hook, or latch when FRA other remote control crewmember, purposes of this section, ‘‘not in use’’
does not even require such securement while riding the side of a car, operated means that there is either no crew or
devices, FRA has decided to set forth a through the crossover and was struck equipment in the vicinity of the switch
rule that distinguishes the securement and killed by the static fouling or there is a crew in the vicinity of the
with a lock, hook, or latch from the equipment.) By adding this prohibition switch but the crew has no intention of
securement of the switch from to the final rule, each railroad employee using the switch. FRA has also added
unintentional movement over it. For who operates or verifies the position of the phrase ‘‘after operating a switch’’ to
example, some switches do not have hand-operated switches will be required clarify that the requirement in
locks, hooks, or latches but are to ensure that before a switch is paragraph (b)(8) does not apply to an
considered secure from unintentional operated or verified, and a movement employee who is merely verifying the
movement when the switch handle is over the switch is initiated, the position of a hand-operated switch, as
rotated down parallel to the ground. If employee is responsible for checking opposed to actually operating the
the requirement in paragraph (b)(6) is that equipment is not fouling the position of such a switch.
followed, it should prevent derailments switch, whether or not the employee Proposed paragraph (d) has been
and accidental misalignments caused by had left the equipment fouling. redesignated as paragraph (c). This
the switch points moving under Paragraph (b)(7) has also been paragraph requires that when rolling
equipment. amended for clarification purposes. The and on-track maintenance-of-way
FRA has also added the phrase ‘‘after proposed requirement stated that an equipment has entered a track,
operating a switch’’ to clarify that the employee shall ‘‘ensure that switches approaching a hand-operated switch not
requirement in paragraph (b)(6) does not are not operated while the equipment is lined for its intended movement, it shall
apply to an employee who is merely standing or moving over a switch.’’ The not foul a track (see definition of ‘‘foul
verifying the position of a hand- final rule requires that an operating/ or fouling a track’’ in this subpart) until
operated switch, as opposed to actually verifying employee shall ensure that a the switch is properly lined for the
operating the position of such a switch. switch is not operated while rolling and intended movement. If the switch is
Operations would be significantly on-track maintenance-of-way equipment intended to be trailed through, such as
delayed if every time a train crew is fouling the switch, or standing or with a spring switch, or a yard type
needed to verify the position of a hand- moving over the switch. Thus, in switch commonly referred to as a
operated switch it would also have to addition to the added prohibition ‘‘rubber switch,’’ a ‘‘run-through
ensure that the switch is secure from previously discussed, the final rule switch,’’ or a ‘‘variable switch,’’
unintentional movement of the switch clarifies what it meant by ‘‘equipment.’’ movement shall not trail through the
points. Such a requirement would The reason for this rule is that operating switch until the route is seen to be clear
require that the train be stopped prior to a switch under a moving train or while or the equipment has been granted
movement over the switch, and a rolling and on-track maintenance-of- movement authority by the employee in
crewmember disembark to check the way equipment is standing over it is an charge of that track segment or switch.
switch. It is reasonable to expect that obvious recipe for disaster but Additionally, if a train, rolling
the last employee who operated the apparently occurs with enough equipment or on-track maintenance-of-
switch ensured that the switch was frequency that a requirement is way equipment is closely approaching a
properly secured. If certain types of necessary to discourage taking this risk. switch and an employee observes a
switches are found to regularly fail to The NPRM contained a related proposed conflicting movement also closely
protect against unintentional requirement that several commenters approaching the switch, the track with
movements, FRA will consider whether believed was ambiguous, and BMWED the approaching conflicting movement
to initiate a rulemaking then. described as unnecessary. Given the shall not be fouled.
A new requirement has been added to retention of the requirement in Proposed paragraph (e) has been
paragraph (b)(7). The final rule adds the paragraph (b)(7), we agree with the redesignated as paragraph (d). Paragraph
prohibition of operating the switch comments. This related proposed (d) specifies that when rolling and on-
while rolling and on-track maintenance- requirement was found in paragraph (f) track maintenance-of-way equipment
of-way equipment is fouling the switch. of the NPRM. Proposed paragraph (f) has entered a track, it is required that
FRA overlooked this straightforward mirrored an operating rule many the hand-operated switch to that track
prohibition in the NPRM, although the railroads have which requires an shall not be lined away from the track
NPRM arguably covered the issue employee, who has lined a hand- until that equipment has passed the
through other proposed requirements. operated switch to let equipment enter ‘‘clearance point’’ (as defined in this
See §§ 218.101(c) and 218.103(d). or leave the main track, to stand at least subpart) of that track. If complied with,
However, following the fatal accident of 20 feet from that switch until the this requirement will prevent an
a remote control operator riding the side movement is complete. Upon further employee from operating a switch while
of a car on August 30, 2007, in BNSF’s reflection, FRA believes the proposed equipment is fouling it, directly on it, or
Mormon Yard in Stockton, California, paragraph (f) is not practical to comply in close proximity to it. The purpose of
FRA realized that, from an enforcement with and enforce in all situations due to this requirement is to prevent injuries
perspective, neither of these other physical restrictions. and accidents caused by improper
requirements explicitly covered an Under paragraph (b)(8), it is required operation of switches. Injuries should be
employee who operated a switch when that after operating a switch, an reduced by this requirement because
someone else left equipment fouling the employee ensure that each switch , when switches are operated with
switch. (Although FRA’s investigation when not in use, is locked, hooked, or equipment fouling a switch, or directly
of the Morman Yard accident is on- latched, if so equipped. This means that on a switch, a switch can be hard to
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going, preliminary information indicates if the switch is equipped with a latch or operate or may be put under tension
that a crew left some cars fouling a hook, it must be applied and secured such that when an employee begins to
crossover switch, and the crossover after it is operated. For locks, this means operate the switch handle, it may move
switch was later lined for the crossover the lock is in the hasp, and the lock is unexpectedly; thus, back injuries and
by one member of a remote control crew locked. If it is a latch or hook, the latch other muscle strains may be reduced. In

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addition, accidents may be reduced as inadvertently diverted onto another alternative safe procedure because these
employees will not be allowed to track. (Of course, this can be avoided if other employees will likewise be
operate switches under tension, i.e., all trains were required to approach all individually responsible for the safe and
when cars are on a switch. main track switches prepared to stop, proper operation of that hand-operated
but that requirement would impose a main track switch; the employees
Section 218.105 Additional
substantial burden on railroads under performing these jobs shall be qualified
Operational Requirements for Hand-
most circumstances and would also on operating switches and verifying
Operated Main Track Switches
introduce other safety concerns.) switch position according to this
As explained in the section-by-section Railroads may designate a different subpart, so there should be no inherent
analysis to § 218.103, FRA has divided position as normal, as some operations problems with the transfer of
proposed § 218.103 into several sections may be more efficient with a hand- responsibility for the switch. Regardless
so that the requirements will be easier operated main track switch’s ‘‘normal’’ of the position of the switch when the
to follow and be in a more logical order. position designated in what would train dispatcher directs otherwise or the
The requirements found in this section otherwise be referred to as the ‘‘reverse’’ switch is left in the charge of another
were derived from proposed § 218.103. position. No matter what position a qualified employee, it must still be
The requirement proposed in railroad designates as the normal locked, hooked or latched, if so
paragraph (a) has been revised, but the position of each hand-operated main equipped, when not in use, as required
reasons behind the requirement remains track switch, the requirement is for such by § 218.103(b)(8).
the same. The reasons behind this designations to be made in writing. The Just in case there is any confusion that
paragraph are to ensure that (1) each railroad may designate the normal the operation of a hand-operated main
railroad adopt and comply with an position of the switch in its operating track switch is a function requiring job
operating rule which complies with the rules, system special instructions, briefings, paragraph (c), formerly
requirements of this section; and (2) proposed § 218.103(i)(3), sets forth the
timetables, general orders, or any other
when any person including, but not requirements for such briefings where
written documentation that will provide
limited to, each railroad, railroad employees should be engaging in
adequate notice to employees operating
officer, supervisor, and employee meaningful communication. Thus, in
and verifying hand-operated main track
violates any requirement of an operating paragraph (c)(1), FRA specifically
switches.
rule which complies with the requires that before a train leaves the
requirements of this section, that person FRA is unaware of any railroads that location where any hand-operated main
be considered to have violated the do not require locking of main track track switch was operated, all
requirements of this section. The NPRM switches as a safeguard against crewmembers shall have verbal
was not intended to mean, but could unauthorized use. Paragraph (b) requires communication to confirm the position
possibly have read, that each person that employees operating and verifying of the switch. Similarly, paragraph (c)(2)
was only to uphold and comply with hand-operated main track switches addresses that communication amongst
the railroad’s operating rule and not the should pay careful attention to ensure employees is vital when roadway
regulation itself. The purpose for that these switches, when not in use, are workers are working within the same
requiring that each railroad, railroad lined and locked in that position except work limits and operate hand-operated
officer, supervisor, and employee shall under two circumstances. The first main track switches. Thus, when any
be considered in violation of this circumstance under which the roadway work group is working under
section when a railroad operating rule employee does not need to return the the protections of the specified form of
that complies with this section is switch to the designated normal working limits, any employee who
violated is so that FRA has the authority position occurs when the train operates a hand-operated main track
to enforce this regulation as opposed to dispatcher directs otherwise; thus, the switch within such limits shall do so
merely requiring that each railroad train dispatcher, with movement control under the direction of the roadway
maintain and have in effect such a rule. over that main track segment, directs the worker in charge. Further, it is required
Proposed § 218.103(c)(1) titled ‘‘Hand- crew using the switch to leave the that the employee operating the hand-
operated Main Track Switches’’ has switch in other than the normal operated main track switch shall report
been redesignated as § 218.105(b) and position. The dispatcher would then be to the roadway worker in charge the
retitled ‘‘Designating switch position,’’ responsible for the switch and must position of all hand-operated main track
but has otherwise remained unchanged. follow railroad operating procedures for switches the employee has operated to
This paragraph provides regulatory the necessary protection of the switch. the roadway worker in charge prior to
authority over the hand-operated main Such ‘‘necessary protection’’ entails that the expiration of the authority limits.
track switches so that FRA regulates the the dispatcher take steps to ensure that In some roadway work group
positioning of all such switches. In the next train crew approaching the situations, a roadway worker may be
contrast, FRA only prescribes switch has a track warrant informing instructed during a job briefing to
requirements for hand-operated main that the switch has been left reversed. In convey switch position information to
track switches in non-signaled territory some instances, the dispatcher will need an employee who is not the roadway
in EO 24. to make a note in a log of train worker in charge. In this alternative
The rule specifies that each railroad movements, or other similar document, situation, the contact person is acting as
will retain discretion regarding the to ensure that subsequent dispatchers an intermediary between the employee
normal position of a hand-operated have access to the reversed switch operating the switch and the roadway
main track switch. Generally, railroad information. The second circumstance worker in charge. This intermediary
operating rules pertaining to the under which the employee does not person is commonly referred to as an
operation of switches provide that the need to return the switch to the ‘‘employee in charge.’’ The rule permits
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normal position for a main track switch designated normal position occurs when the employee in charge to pass on the
is lined and locked for movement on the the switch is left in the charge of a switch position information from the
main track when not in use. The crewmember of another train, a employee operating the switch to the
purpose of this rule is so that trains switchtender, or a roadway worker in roadway worker in charge without
traveling on main track will not be charge. Paragraph (b)(2) should be an firsthand verification of the switch

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position. The important aspect of this conditions would likely maintain a high hand-operated main track switch be left
requirement is that the work group level of situational awareness to on- lined and locked in the reverse position.
members are communicating the switch coming trains as the employee The reference to another paragraph in
position and not who conveys the understands that he or she is providing this section is intended to remind the
information. The allowance of this his or her own protection, and the employee releasing the limits that before
option reflects the reality of current information obtained is not always a train, train crew, or maintenance-of-
operations. accurate. FRA is concerned with way employee leaves the location where
A recurring concern raised by the promulgating a requirement that the any hand-operated main track switch
labor organizations was that some employee contact the dispatcher or was operated, all crewmembers and
railroads permit a maintenance-of-way control operator in every instance as the maintenance-of-way employees shall
employee to operate a hand-operated formality of making that communication have a verbal communication to confirm
main track switch in non-signaled mandatory could lead maintenance-of- the position of the switch. Soon after
territory, typically for purposes of way employees to develop a false sense this job briefing, it is time to call the
servicing the switch, without contacting of safety when true block protection is dispatcher and confirm the same
the dispatcher or the crewmembers of not being provided. information that should have been
any potentially on-coming trains. The Unless a switch is broken, it should included in the train crew or
concerns regarding this practice take seconds, not minutes, to operate a maintenance-of-way employees’ job
centered on whether appropriate switch back to normal if a train is briefing. If the train dispatcher wants
protection was being afforded to on- known to be approaching. FRA assumes the employee to leave the switch in the
coming trains that potentially could be that a maintenance-of-way employee reverse position, this communication is
diverted from the main track if the who realizes that a switch is broken, as the train dispatcher’s opportunity to
employee servicing the switch was opposed to needing some oil or routine inform the employee of such a request.
unable to restore the switch to the maintenance, would immediately It is required that the employee and
normal position prior to the train’s contact a dispatcher or control operator dispatcher confirm with each other the
arrival. BMWED questioned whether it in order to obtain the authority to set up switch position and that the switch is
made sense to require strict working limits or other adequate locked so that there is little chance that
communication requirements to verify protection that would allow the any trespasser with a key or bolt cutters
the position of switches prior to the employee the time to repair the switch. could tamper with the switch. As in
expiration of exclusive track occupancy Certainly, FRA would not expect paragraph (b)(1), a train dispatcher who
authority but not require any railroads to permit the servicing of a directs that the switch be left in the
communication under this other switch when heavy train traffic is reverse position must provide the
circumstance. FRA views these expected. FRA would also expect protection necessary to ensure that the
situations as completely different as the railroads to coordinate such work when subsequent train crew or operator of on-
former applies to job briefings among a train schedules are available and track equipment that will approach the
roadway worker group, not a adequate time for such service can be switch has a track warrant informing
communication with a dispatcher or planned. Although FRA is not them of the switch’s reverse position.
control operator as BMWED is arguing implementing any regulations on this Again, such ‘‘necessary protection’’
for in the latter. BMWED was also issue, we recommend that railroads entails that the dispatcher take steps to
concerned with the liability the rule implement procedures to safeguard ensure that the next train crew or
would have for the employee who failed employees and trains when a switch
operator of on-track equipment
to restore a switch being serviced if a requires servicing.
approaching the switch has a track
train came along. With regard to the Proposed § 218.103(c)(2) has been
redesignated as § 218.105(d). This warrant informing that the switch has
liability issue, FRA has not added any
paragraph requires that in non-signaled been left reversed. In some instances,
regulatory requirement for such an
territory, before an employee releases the dispatcher will need to make a note
employee servicing a switch and thus
the limits of a main track authority and in a log of train movements or other
the employee’s liability is unaffected by
a hand-operated switch is used to clear similar document to ensure that
this rule.
FRA’s decision not to require an the main track, and, prior to departing subsequent dispatchers have access to
employee servicing a switch to the switch’s location, certain conditions the reversed switch information.
communicate with the dispatcher or be met. An employee is prohibited from Paragraphs (d)(2) and (3) detail two
control operator is based on several releasing the limits after departing the more conditions that must be met when
factors. One of the biggest factors is that switch’s location so that the employee main track authority limits are being
FRA learned of this practice through who has any question about the prepared for release. The second
discussions with the RSAC working condition of the switch has access to condition is that if the employee’s
group but could not find any data to verifying its condition. This report of the switch position is correct,
support that this practice has been a requirement is intended to prevent an i.e., matches the operating rule or
problem or cause of accidents/incidents. employee from releasing the limits dispatcher’s direction, the train
It is FRA’s understanding that this is a while located in the yard office or while dispatcher shall repeat the reported
practice mainly on the western railroads traveling away from the switch’s switch position information to the
where employees can often see on- location in a taxi. employee releasing the limits and ask
coming trains great distances away. In In paragraph (d)(1), the first proposed whether the repeated information is
the situations where employees may not condition that must be met is that the correct. Typically, railroad procedures
be able to easily view an on-coming employee releasing the limits, after require the train dispatcher to ask
train, it is a common practice for a conducting a job briefing in accordance whether ‘‘that is correct’’ with regard to
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maintenance-of-way employee to with this subpart, must report to the confirming this type of information, so
contact a dispatcher or control operator train dispatcher that the hand-operated the regulation is intended to reflect
in order to obtain a sense of when the main track switch has been restored to those commonly used procedures. The
next train is likely to come along. An its normal position and locked, unless third condition is that the employee
employee working under such the train dispatcher directs that the releasing the limits then confirm that

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this information is correct with the train Section 218.107 Additional another track that could potentially
dispatcher. Railroads and employees Operational Requirements for Hand- strike other rolling equipment.
who currently release such limits Operated Crossover Switches Paragraph (c) was formerly proposed
should recognize that these § 218.103(g)(2). This paragraph
requirements follow the traditional rules As explained in the section-by-section identifies four exceptions to the general
of such release. The purpose of the analysis to § 218.103, FRA has broken rule that hand-operated crossover
dispatcher and employee repeating the up proposed § 218.103 into several switches should be in correspondence.
switch’s condition is so that both sections so that the requirements will be The reason for the exceptions is that
employees can confirm that the other is easier to follow and be in a more logical each operation is safe or safer with the
repeating the correct information order. The requirements found in this crossover switches out of
regarding the position of the switch and section were derived from proposed correspondence than in correspondence.
that it is locked. § 218.103. That is, each exception identifies a
The requirement proposed in situation in which employees on the
The rule retains the requirement in track are protected by diverting trains
paragraph (a) has been revised, but the
EO 24 that an employee releasing the and equipment without slowing down
reasons behind the requirement remain
limits of a main track authority in non- operations.
the same. The reasons behind this
signaled territory communicate with the FRA is aware that some
paragraph are to ensure that (1) each
train dispatcher that all hand-operated configurations of crossover switches are
railroad adopt and comply with an
main track switches operated have been quite complicated, typically due to the
operating rule which complies with the
restored to their normal position, unless requirements of this section; and (2) location of adjacent or adjoining tracks
the train dispatcher directs otherwise, when any person including, but not and other attendant switches. Railroads
but only to the extent that the switches limited to, each railroad, railroad should address these complicated
are at the location where the limits are officer, supervisor, and employee configurations of crossover switches
being released. With the elimination of violates any requirement of an operating when employees are instructed on the
a SPAF, it would be difficult for an rule which complies with the physical characteristics of the territory.
employee to recall the condition of any requirements of this section, that person Without proper instruction on how to
particular hand-operated main track be considered to have violated the apply a railroad’s operating rule for
switch operated and there would likely requirements of this section. The NPRM correspondence of crossover switches, it
be a reaction for an employee to believe was not intended to mean, but could will be difficult to hold employees
he or she left all such switches in proper possibly have read, that each person accountable. However, railroads can be
position—without much opportunity to was only to uphold and comply with held accountable if employees do not
double-check the condition of those the railroad’s operating rule and not the properly apply such an operating rule
faraway switches at that time. As regulation itself. The purpose for and lack of instruction is one of the
mentioned previously, accidents often requiring that each railroad, railroad causes. Of course, if a railroad provided
occur where the limits are being officer, supervisor, and employee shall instruction but a violation was
released and that is why the rule has be considered in violation of this committed due to the complexities of
placed emphasis on addressing the section when a railroad operating rule the crossover configuration, FRA will
problem at those locations. The exercise discretion regarding whether
that complies with this section is
switches located at the point of release any enforcement action is necessary.
violated is so that FRA has the authority
of the limits should be readily Paragraph (c)(1)(i) was formerly
to enforce this regulation as opposed to proposed § 218.103(g)(2)(i)(A). This
accessible for any employee who is merely requiring that each railroad
unsure of the condition the switch was paragraph permits mechanical
maintain and have in effect such a rule. department workers to line one end of
last left in. The rule also adds the
Paragraph (b) was formerly proposed a crossover away from the track under
requirement that the employee report
§ 218.103(g)(1). This paragraph sets blue signal protection to allow workers
that the switch has been locked; locking
forth the general rule that both hand- on, under, or between rolling
of the main track switch should prevent operated switches of a crossover shall be
easy access to unauthorized users. equipment. See 49 CFR 218.27.
properly lined before equipment begins Similarly, paragraph (c)(1)(ii), formerly
The requirements in paragraph (d) a crossover movement. Properly lined proposed § 218.103(g)(2)(i)(B), permits
carry over certain employee/dispatcher means that switches at both ends of the providing track protection for roadway
communication requirements from EO crossover are lined for the crossover workers on track that is considered
24 that provide additional checks to movement. As train crews expect ‘‘inaccessible’’ under § 214.327 of this
ensure that hand-operated main track crossover switches to be properly lined, chapter. Paragraph (c)(1)(iii), formerly
switches are left properly lined and i.e., in correspondence (see definition of proposed § 218.103(g)(2)(i)(C), permits
locked. The requirement is carefully ‘‘correspondence of crossover those railroads that have the technology,
tailored to address the switches at the switches’’), an accident can easily occur in traffic control system (TCS) territory
location being released because FRA has when crossover switches are out of to allow a signal maintainer to perform
determined that many of the accidents correspondence. A related concern that maintenance, testing or inspection of
are occurring at that location. As several is addressed by this paragraph is what the switch at only one end of a
comments were received in response to to do when equipment is traversing a crossover while continuing to operate
EO 24 regarding an equivalent crossover; the rule requires that all trains over the other crossover switch.
requirement carried over in paragraph equipment be clear of both ends of the FRA does not have any evidence to
(d), it should be helpful to describe crossover before restoring the switches suggest this exception is an unsafe
what FRA means by the term ‘‘releasing to the normal position. If employees practice. Finally, the fourth exception,
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the limits of a main track authority.’’ apply a railroad operating rule that found in paragraph (c)(1)(iv), which was
The term means releasing all or a incorporates this rule, the requirement formerly proposed at the end of
portion of the limits (i.e., rolling up the should prevent the unintentional proposed paragraph (g)(1), recognizes
limits) of an existing main track running through of crossover switches that a safe operation is probable during
authority. or unintentional movements onto continuous switching operations where

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only one crew is using both tracks were reported as caused by a failure to is in the derailing position; but, a
connected by the crossover. apply or remove a portable derail and railroad may specify in its operating
FRA has eliminated the stated thus 98% of the reportable accidents/ rules or special instructions that the
requirement in proposed incidents were caused by the normal position of a fixed derail is in
§ 218.103(g)(2)(ii) that crossover misapplication of the railroad’s the non-derailing position. Paragraph
switches shall be immediately restored operating rules for fixed derails. As the (b)(2) requires that fixed derails shall be
to correspondence after the protection primary reason for issuing this rule is to kept in the derailing position whether or
afforded by one of the four exceptions reduce accidents/incidents attributed to not any rolling or on-track maintenance-
in paragraph (c) is no longer required. human factor causes, this rule’s focus on of-way equipment is on the tracks they
After further consideration, FRA reducing accidents/incidents attributed protect, except as provided in paragraph
concluded that this requirement is to mishandling fixed derails is (b)(1) or when changed to permit
implicit and it would be redundant to appropriately targeted. movement. Thus, the general rule
state it. If one of the paragraph (c) The requirement proposed in requires that the fixed derails be
exceptions no longer applies, the paragraph (a)(1) has been revised, but returned to the derailing position once
general rule in paragraph (b) must be the reasons behind the requirement the movement is complete while the
complied with—meaning that both remains the same. The reasons behind rule still allows for the flexibility of a
hand-operated switches of a crossover this paragraph are to ensure that (1) railroad to designate otherwise or an
shall be properly lined before rolling each railroad adopt and comply with an exception in paragraph (b)(1) to apply in
and on-track maintenance-of-way operating rule which complies with the less common circumstances. If fixed
equipment begins a crossover requirements of this section; and (2) derails are being used for protection of
movement. when any person including, but not workers using blue signals, these rules
limited to, each railroad, railroad would not be applicable as FRA already
Section 218.109 Hand-Operated Fixed
officer, supervisor, and employee has other regulations governing derails
Derails
violates any requirement of an operating in that circumstance. See 49 CFR part
As explained in the section-by-section rule which complies with the 218, subpart B.
analysis to § 218.103, FRA has broken requirements of this section, that person The entire purpose of a derail,
up proposed § 218.103 into several be considered to have violated the whether fixed or portable, is to protect
sections so that the requirements will be requirements of this section. The NPRM something or someone. Derails are
easier to follow and be in a more logical was not intended to mean, but could typically used to prevent equipment
order. The requirements found in this possibly have read, that each person from rolling out onto main tracks in
section were derived from proposed was only to uphold and comply with front of trains. They are also used to
§ 218.103. the railroad’s operating rule and not the protect workers who are on a track to
FRA has also clarified in the title to regulation itself. The purpose for repair track or equipment. Derails may
this subpart, the purpose and scope requiring that each railroad, railroad be placed in addition to warnings
section, and in § 218.109, that this officer, supervisor, and employee shall provided by signs, flags, gates, and
subpart applies to ‘‘fixed’’ derails. In the be considered in violation of this notices in timetables and special
NPRM, FRA did not distinguish section when a railroad operating rule instructions; thus, derails protect
between the two general types of that complies with this section is employees when other employees
derails, i.e., fixed and portable. FRA is violated is so that FRA has the authority operating equipment or a train fail to
using the term ‘‘fixed derails’’ to to enforce this regulation as opposed to heed these other warnings, or
contrast it with derails that are portable. merely requiring that each railroad unattended equipment rolls freely.
Portable, or temporary, derails can maintain and have in effect such a rule. Although a properly applied derail that
easily be transported and applied at Paragraph (a)(2) carries over the stops equipment or a train has served its
different locations throughout the day in proposed requirement from § 218.103 purpose, FRA prohibits movements over
order to protect workers and equipment that each railroad specify minimum a fixed derail in the derailing position
as needed. Fixed, or permanent, derails requirements for an adequate job under paragraph (b)(3). Paragraph (b)(3)
cannot be easily transported because briefing concerning hand-operated fixed will permit FRA to take enforcement
they are typically affixed to the track derails. The requirement is for each action when a railroad or person causes
structure in some manner. Fixed derails railroad to have its own rules and a movement to be made over a derail in
are normally found prior to entering a procedures governing the minimum the derailing position. As the typical
locomotive servicing area or car shop requirements for a satisfactory job situation involving movement over a
repair area, where they are used to briefing, which to FRA’s knowledge, derail occurs at low speeds and does not
protect workers in those areas from nearly all railroads already do. It is result in serious injuries or excessive
encroachment by unauthorized essential that employees working damage to railroad property, the
movements of rolling equipment, and together know exactly what each industry has accepted, in FRA’s view,
on most industry tracks at or near the person’s role is in the operation, what too much tolerance for this type of
switch connecting with the main track. the methods of operation and protection incident. Consequently, while FRA
By clarifying that this subpart and will be, and the order in which plans to use its enforcement discretion,
section applies to fixed derails, FRA is segments of the job are to be the purpose of this requirement is to
providing up front notification that this accomplished. With such knowledge, reverse the permissive culture of the
subpart does not apply to the operation one employee could recognize the railroad industry that has accepted
of portable derails. mistakes of another and correct them operating over a derail.
During the nearly four and a half year before any operating rule violation or Paragraph (c) derives from
period from January 2003 through May serious accident occurred. § 218.103(b) and (h)(3). This paragraph
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2007, 154 accidents/incidents were Paragraph (b) derives from proposed addresses the same type of list of
reported by railroads to have been § 218.103(h). This paragraph sets forth requirements that FRA is requiring for
caused, either primarily or secondarily, the general rules for hand-operated hand-operated switches, but applies
by a person’s failure to apply or remove fixed derails. Paragraph (b)(1) requires them to hand-operated fixed derails. For
a derail. Only 3 of these 154 accidents that the normal position of fixed derails instance, paragraph (c)(1) requires that

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employees operating or verifying the such technology posed too many setup during severe weather conditions
position of a fixed derail shall conduct questions related to adequate that did not permit adequate camera
job briefings before work is begun, each functionality and reliability. After views of whether a crossing’s gates were
time a work plan is changed, and at further consideration, FRA has down or the track is, in fact, clear of
completion of the work. It is essential concluded that implementing the policy equipment. Another consideration
that employees performing these tasks as mandatory requirements is necessary before implementing technology aided
communicate with one another at key to assure Federal, State and local point protection is who will be allowed
intervals to prevent error free operations governments, that adequate safeguards to view the monitor and assist the crew;
over derails. Paragraph (c)(2) requires are in place to protect the general thus, FRA will consider enforcement
that employees operating or verifying public. action if employees do not conduct
the position of a fixed derail shall be The first section of appendix D adequate job briefings or maintain
qualified on the railroad’s operating addresses the general requirements and adequate lines of communication
rules relating to the operation of the considerations for all point protection between the employee controlling the
derail. In FRA’s view, it seems intuitive aided by technology. One of the big movement and the employee viewing
that a railroad cannot expect an concerns with not having a qualified the monitor.
employee to know how to properly employee protecting the point is It is also worth mentioning that each
operate or verify the position of a hand- determining that the technology, and railroad shall ensure that the technology
operated fixed derail without qualifying the procedures for its use, provide an provides ‘‘real time coverage,’’ i.e., a
the employee. Once qualified, an equivalent level of protection to that of view without any delay that could
employee will be held individually a direct visual determination by a impact the safety of the operation and
responsible for the position of the derail crewmember or other qualified provide less protection than that of a
in use; for the purpose of paragraphs employee properly positioned to make direct visual determination. With that
(c)(3) and (c)(6), a fixed derail is the observation. To do that, a person regard, we are concerned with internet
considered ‘‘in use’’ if a movement is must be properly qualified. FRA has or web-based monitoring systems that
either operating over the derail, or addressed the qualifications issue by do not provide a direct feed to the
continuously or intermittently operating carrying over from the proposed rule, in monitor and could potentially be
over the derail while it is in the non- § 218.95(a)(2), the requirement that each delayed by routing through a third party
derailing position. Paragraph (c)(6) railroad must qualify employees ‘‘in any server or other internet portal. Although
addresses that employees operating or technology (and related procedures) FRA is not prohibiting such web-based
verifying the position of a fixed derail necessary to accomplish work subject to monitoring systems, additional
shall ensure that when not in use, the particular requirements, actions safeguards would need to be employed
derails are locked, hooked, or latched in required by the employee to enable and in order to ensure that real time
the normal position if so equipped. As use the system, means to detect coverage can be obtained and the setup
FRA mentioned in the analysis to malfunctioning of equipment or relied upon.
§ 218.103, FRA’s rule does not require deviations from proper procedures, The second section of appendix D
switch or derail targets, latches, locks or actions to be taken when malfunctions specifies additional requirements for the
hooks; however, if a switch or derail is or deviations are detected, and scenario in which remote control
equipped with any of these devices, information needed to prevent locomotive operations will be using
FRA requires that the employees check unintentional interference with the technology aided point protection at
that these devices are properly placed or proper functioning of such technology.’’ highway-rail grade crossings, pedestrian
correspond as intended. If the derail is In summary, the rule requires crossings, and yard access crossings. All
so equipped, it shall be locked in the employees to be qualified on proper use of the general requirements and
normal position regardless of whether of the technology and what to do when considerations of the first section are
the normal position is designated by the the technology does not work as also applicable to these remote control
railroad as in the derailing position or intended. Most malfunctions of the operations over grade crossings except
non-derailing position. technology should be detectable, and that there should be less of a chance of
result in abandoning the use of the a communication problem as FRA is
Appendix D to Part 218—Requirements technology for determining point instituting a new requirement that the
and Considerations for Implementing protection until the malfunction can be remote control operator controlling the
Technology Aided Point Protection corrected. movement shall be the only person
In the preamble to the NPRM, FRA Although each railroad will retain permitted to view the monitor during
restated its policy on using technology, some flexibility in implementing such operations. As the appendix
such as cameras and monitors, to assist technological aids to provide point explains, the purpose of this new
crews in providing point protection protection, the stated requirements and requirement is to protect the general
during shoving or pushing movements. considerations will provide FRA with public, which is at greater risk of being
The NPRM was the first proposed the ability to more quickly and directly struck by equipment at the crossings
regulatory provision on this subject, enforce a change if a railroad attempts specified than employees qualified to
and, in addition to the preamble to implement a setup that does not operate in a yard environment. If the
discussion, the issue was also directly adequately address all of the factual remote control operator controlling the
raised by proposed § 218.99(b)(2)(i). circumstances noted for consideration. movement is viewing the monitor, that
FRA received some comments on this For instance, a railroad shall not permit operator should be able to react more
policy and it was discussed with the a camera/monitor setup that utilizes a quickly if a vehicle or pedestrian enters
RSAC working group. Generally black and white monitor that does not the crossing being viewed than if the
speaking, the railroads wanted to allow the person viewing the monitor to information first had to be relayed by
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continue using such technology without adequately determine a signal another person. Shaving a few precious
seeing any need for further regulation; indication for the shoving or pushing seconds off the reaction time by
meanwhile, the labor organizations were movement. Similarly, FRA could take eliminating the need for the relaying of
concerned that without adequate enforcement action against a railroad or information may be enough to mitigate
safeguards, i.e., regulations, the use of individual for using a camera/monitor the severity of an accident. FRA realizes

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8490 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

that the few railroads using this yard access crossing prior to April 14, most directly targeted by the
technology prior to implementation of 2008, i.e., the effective date of this final rulemaking. FRA believes that most
this rule will each likely need to amend rule, the railroad may continue to use railroads can achieve average reductions
any relevant operating rules or that setup without a new crossing of 35% in these accidents, because there
procedures. As many of these operations diagnostic team evaluation as long as a is one Class I railroad with better than
involve two crewmembers who have the diagnostic team was previously used to average compliance with its own
ability to control the movement, make the necessary determinations. operating rules which routinely has
complying with this requirement should However, even if a diagnostic team was human factor accident rates 35% below
not be significantly burdensome. In fact, used prior to that date, compliance is the industry average. The costs of the
this requirement may cut down on the required with the other requirements foregoing are minimal, because most of
odd practice of having one remote unless specified by a diagnostic team. the procedures mandated are already
control operator/crewmember As FRA explains in its conclusion, we incorporated in the railroads’ own
controlling the movement when a expect that technology will develop and operating rules. The biggest costs will be
second, equally capable operator/ improve over time. The use of new related to publication of changed
crewmember is in the best possible technology is typically driven by language, and management of the
position to view the equipment ahead of efficiencies achieved, of which safety operating rules programs. The rule
the movement. may only be one component. would have even less impact on small
FRA has converted the policy Meanwhile, FRA cannot always keep up entities, as they are excused from most
statement published in the NPRM into with the latest technologies without of the burdens which regulate
a list of mandatory requirements for notification and we have a duty to management of their operating rules
remote control locomotive operations determine whether a new technology to testing programs. The final rule would
utilizing camera/monitor setups at the aid point protection provides an generate twenty-year discounted
types of crossings specified. The list has equivalent level of protection to that of benefits of $191,189,965, and twenty-
been altered slightly to rephrase each a direct visual determination. Thus, year discounted costs of $20,756,051,
item as a mandatory requirement. The FRA is requiring that railroads wishing for a twenty-year discounted net benefit
first requirement, to have a Crossing to utilize the latest technologies contact of $170,433,914, if the assumptions in
Diagnostic Team evaluate the crossing, the Associate Administrator for Safety this analysis are correct.
is arguably the most important. Each in writing prior to implementation.
railroad cannot be permitted to setup B. Regulatory Flexibility Act and
remote cameras at crossings for use by VI. Regulatory Impact and Notices Executive Order 13272
remote control operators without A. Executive Order 12866 and DOT The Regulatory Flexibility Act (5
consulting FRA, and relevant State and Regulatory Policies and Procedures U.S.C. 601 et seq.) and Executive Order
local government officials. All types of 13272 require a review of proposed and
information related to the safety of the This final rule has been evaluated in
accordance with existing policies and final rules to assess their impact on
crossing would need evaluation prior to
procedures, and determined to be non- small entities. FRA has prepared and
deciding whether technology could be
significant under both Executive Order placed in the docket an Analysis of
used safely at that crossing and
12866 and DOT policies and procedures Impact on Small Entities (AISE) that
determining exactly what modifications
(44 FR 11034; Feb. 26, 1979). FRA has assesses the small entity impact of this
are necessary to ensure the operation is
prepared and placed in the docket a final rule. Document inspection and
safe. Because we are requiring the
regulatory evaluation addressing the copying facilities are available at the
expertise of a diagnostic team, FRA is
economic impact of this final rule. Docket Management Facility: U.S.
permitting the diagnostic team to
Document inspection and copying Department of Transportation, 1200
conclude that some or all of
facilities are available at the Docket New Jersey Avenue, SE., West Building
requirements 2, 4, 5, and 6 do not need
to be complied with when a crossing is Management Facility: U.S. Department Ground Floor, Room W12–140,
equipped with supplemental safety of Transportation, 1200 New Jersey Washington, DC 20590–0001. Access to
devices that prevent motorists from Avenue, SE., West Building Ground the docket may also be obtained
driving around lowered gates; however, Floor, Room W12–140, Washington, DC electronically through the Federal
the diagnostic team cannot waive the 20590–0001. Access to the docket may eRulemaking Portal at http://
requirement that the remote control also be obtained electronically through www.regulations.gov. Photocopies may
operator controlling the movement be the Federal eRulemaking Portal at also be obtained by submitting a written
the person viewing the monitor http://www.regulations.gov. Photocopies request to the FRA Docket Clerk at
(requirement number 3), nor the may also be obtained by submitting a Office of Chief Counsel, Stop 10,
requirement that the railroad notify the written request to the FRA Docket Clerk Federal Railroad Administration, 1120
Associate Administrator for Safety in at Office of Chief Counsel, Stop 10, Vermont Avenue, NW., Washington, DC
writing when this type of protection has Federal Railroad Administration, 1120 20590; please refer to Docket No. FRA–
been installed and activated at a Vermont Avenue, NW., Washington, DC 2005–23080.
crossing (requirement number 7). This 20590; please refer to Docket No. FRA– FRA notes that the impact on small
latter requirement to contact FRA in 2005–23080. entities have been considered
writing has been added to ensure that FRA analyzed the foregoing final rule throughout the development of this final
FRA grade crossing specialists and and found that there will be relatively rule both internally and through
signal inspectors can be made aware of little change in the burden upon consultation within the RSAC forum, as
when these setups have been activated railroads, however, the FRA believes described in Section II of this preamble.
and, thus, may begin monitoring the that much greater compliance with rules After the Railroad Operating Rules
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safety of such operations. which are almost identical to what the Working Group failed to reach a
If a railroad implemented a remote railroads have promulgated as their own consensus recommendation, FRA
camera setup to be used by a remote operating rules will likely result in a reported the Working Group’s unofficial
control operation at a highway-rail reduction in human factor accidents, areas of agreement and disagreement to
grade crossing, pedestrian crossing, or especially those human factors causes the RSAC.

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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8491

The AISE developed in connection impact on a substantial number of small submitted for approval to the Office of
with this final rule concludes that this entities under the Regulatory Flexibility Management and Budget (OMB) under
proposal would not have a significant Act or Executive Order 13272. the Paperwork Reduction Act of 1995,
economic impact on a substantial 44 U.S.C. 3501 et seq. The sections that
C. Paperwork Reduction Act
number of small entities. Thus, FRA contain the new information collection
certifies that this final rule is not The information collection requirements and the estimated time to
expected to have a significant economic requirements in this final rule have been fulfill each requirement are as follows:

Average time per Total annual Total annual bur-


CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

217.7—Operating Rules;
Filing and Record-
keeping:
—Filing rules, time- 1 New Railroad ............. 1 submission ................. 1 hour ............................ 1 $43
tables, and spe-
cial instructions.
—Amendments to 55 Railroads .................. 165 amendments .......... 20 minutes .................... 55 2,365
operating rules,
timetables, and
timetable special
instructions by
Class I, Class II,
Amtrak, and
Commuter Rail-
roads.
—Class III and 20 New Railroads ......... 20 submissions ............. 55 minutes .................... 18 774
Other Railroads:
Copy of Current
Operating Rules,
Timetables, and
Special Instruc-
tions.
—Class III Rail- 632 Railroads ................ 1,896 amendment ......... 15 minutes .................... 474 20,382
roads: Amend-
ments to oper-
ating rules.
217.9—Program of
Operational Tests:
—Railroad and rail- 687 Railroads ................ 4,732 training sessions 8 hours .......................... 37,856 1,892,800
road officer test-
ing responsibil-
ities: Field Train-
ing.
—Written records of 687 Railroads ................ 4,732 records ................ 2 minutes ...................... 158 10

officer testing
qualifications.
—Written program 20 New Railroads ......... 20 programs .................. 9.92 hours ..................... 198 8,514
of operational
tests/inspections.
—Amendments to 55 Railroads .................. 165 amendments .......... 1.92 hours ..................... 317 13,631
operational tests/
insp. programs.
—Records of indi- 687 Railroads ................ 9,180,000 rcds .............. 5 minutes ...................... 765,000 38,250,000
vidual tests/in-
spections.
—Review of tests/ 687 Railroads ................ 37 reviews ..................... 1 hour ............................ 37 10

inspections/ad-
justments to the
program of oper-
ational tests—
Quarterly reviews.
—Officer designa- 687 Railroads ................ 37 designations + 74 re- 5 seconds + 1 hour ....... 74 10

tions & Six Month views.


reviews.
—Passenger Rail- 20 Railroads .................. 20 designations + 34 re- 5 seconds + 1 hour ....... 34 10

roads: Officer views.


designations &
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Six-Month re-
views.
—Records reten- 687 Railroads ................ 589 review rcds ............ 1 minute ........................ 10 10

tion: Periodic re-


views.

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8492 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

Average time per Total annual Total annual bur-


CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

—Annual summary 37 Railroads .................. 37 summary rcds .......... 61 minutes .................... 38 1,634
on operational
tests/inspections.
217.11—Program of In-
struction on Operating
Rules:
—Railroads instruc- 687 Railroads ................ 130,000 instr. employ- 8 hours .......................... 1,040,000 52,000,000
tion of employees. ees.
—Current copy of 20 New Railroads ......... 20 programs .................. 8 hours .......................... 160 6,880
employee peri-
odic instruction
prog.
—Amendments to 687 Railroads ................ 220 amendments .......... .92 hour ......................... 202 8,686
current employee
instruction prog.
218.95—Instruction,
Training, and Exam-
ination:
—Records of in- 687 Railroads ................ 98,000 empl. rcds ......... 5 minutes ...................... 8,167 351,181
struction, training,
examination.
—FRA disapproval 687 Railroads ................ 50 submissions ............. 1 hour ............................ 50 2,150
of program: Rail-
road responses.
—Amended pro- 687 Railroads ................ 20 amended docs ......... 30 minutes .................... 10 730
grams.
218.97—Good Faith 687 Railroads ................ 687 procedures ............. 2 hours .......................... 1,374 10

Challenge Procedures.
—Copies to em- 687 Railroads ................ 130,000 copies ............. 6 minutes ...................... 13,000 10

ployees of good
faith procedures.
—Copies of amend- 687 Railroads ................ 130,000 copies ............. 3 minutes ...................... 6,500 10

ments to good
faith procedures.
—Good faith chal- 98,000 Employees ........ 15 challenges ................ 10 minutes .................... 3 10

lenges to railroad
directives.
—Resolution of 687 Railroads ................ 15 responses ................ 5 minutes ...................... 1 10

challenges.
—Direct order to 687 Railroads ................ 5 reviews ....................... 15 minutes .................... 1 10

proceed proce-
dures: Immediate
review by railroad
testing officer/em-
ployer.
—Documentation of 687 Railroads ................ 10 protest docs ............. 15 minutes .................... 3 10

employee pro-
tests to direct
order.
—Copies of protest 687 Railroads ................ 20 copies ...................... 1 minute ........................ .33 10

documentation.
—Further review by 687 Railroads ................ 3 reviews ....................... 15 minutes .................... 1 10

designated rail-
road officer.
—Employee re- 687 Railroads ................ 10 written decisions ...... 10 minutes .................... 2 88
quested written
verification deci-
sions.
—Recordkeeping/ 687 Railroads ................ 760 copies .................... 5 minutes ...................... 63 2,709
Retention—Cop-
ies of written pro-
cedures.
—Copies of good 687 Railroads ................ 20 copies ...................... 5 minutes ...................... 2 86
faith challenge
verification deci-
sions.
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218.97—Good Faith 687 Railroads ................ 687 procedures ............. 2 hours .......................... 1,374 10

Challenge Procedures
—Copies to em- 687 Railroads ................ 130,000 copies ............. 6 minutes ...................... 13,000 10

ployees of good
faith procedures.

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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8493

Average time per Total annual Total annual bur-


CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

—Copies of amend- 687 Railroads ................ 130,000 copies ............. 3 minutes ...................... 6,500 10

ments to good
faith procedures.
—Good faith chal- 98,000 Employees ........ 15 challenges ................ 10 minutes .................... 3 10

lenges to railroad
directives.
—Resolution of 687 Railroads ................ 15 responses ................ 5 minutes ...................... 1 10

challenges.
—Direct order to 687 Railroads ................ 5 reviews ....................... 15 minutes .................... 1 10

proceed proce-
dures: Immediate
review by railroad
testing officer/em-
ployer.
218.99—Shoving or
Pushing Movements:
—Required oper- 687 Railroads ................ 687 rule modific ............ 1 hour ............................ 687 10

ating rule compli-


ant with this sec-
tion.
—General Move- 100,000 RR employees 60,000 briefings ............ 1 minute ........................ 1,000 50,000
ment Require-
ments: Job brief-
ings.
—Point Protection: 100,000 RR employees 87,600,000 deter/in- 1 minute ........................ 2,920,000 128,480,000
Visual determina- structions +
tion of clear track 87,600,000 signals.
and cor-
responding sig-
nals or instruc-
tions.
—Remote Control 100,000 RR employees 876,000 confirm ............ 1 minute ........................ 14,600 642,400
Movements: Con-
firmations by
Crew.
—Remote Control 100,000 RR employees 876,000 deter/commu- 1 minute ........................ 14,600 642,400
zone, exceptions nications.
to point protec-
tion: Determina-
tion/Communica-
tion track is clear.
—Operational ex- 6,000 RR Dispatchers .. 30,000 verified/permitted 1 minute ........................ 500 22,000
ceptions: Dis- movements.
patcher permitted
movements that
are verified.
218.101—Leaving Roll-
ing and On-Track
Maintenance-of-Way
Equipment in the
Clear:
—Operating Rule 687 Railroads ................ 687 amended op. rules 30 minutes .................... 344 10

that Complies 3.
with this section.
218.103—Hand-Oper-
ated Switches and
Derails:
—Operating Rule 687 Railroads ................ 687 amended op. rules 60 minutes .................... 687 10

that Complies
with this section.
—Minimum require- 632 Railroads ................ 632 modif rules ............. 60 minutes .................... 632 10

ments for ade-


quate job briefing.
—Actual job brief- 632 Railroads ................ 1,125,000 brfngs ........... 1 minute ........................ 18,750 825,000
ings conducted
by employees op-
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erating hand-op-
erated main track
switches.

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8494 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

Average time per Total annual Total annual bur-


CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

218.105—Additional Job 687 Railroads ................ 60,000 briefings ............ 1 minute ........................ 1,000 10

Briefings for hand-op-


erated main track
switches.
—Exclusive track 687 Railroads ................ 100,000 reports + 1 minute ........................ 3,334 10

occupancy: Re- 100,000 convey.


port of position of
main track switch-
es and convey-
ance of switch
position.
—Releasing author- 6,000 RR Dispatchers .. 60,000 reports + 60,000 30 sec. + 5 sec ............. 583 10

ity limits: Ac- confirm.


knowledgments
and verbal con-
firmations of
hand-operated
main track switch-
es.
218.109—Hand-oper- 687 Railroads ................ 562,500 brfngs .............. 30 seconds ................... 4,688 234,400
ated fixed derails—
Job briefings.
1 Incl. RIA.

All estimates include the time for D. Federalism Implications those standards are in the form of State
reviewing instructions; searching Executive Order 13132, ‘‘Federalism’’ statutes, regulations, local ordinances,
existing data sources; gathering or (64 FR 43255, Aug. 10, 1999), requires or other forms of state law, including
maintaining the needed data; and FRA to develop an accountable process State common law. Preemption is
reviewing the information. For to ensure ‘‘meaningful and timely input addressed in §§ 217.2 and 218.4, both
information or a copy of the paperwork by State and local officials in the titled ‘‘Preemptive effect.’’ As stated in
package submitted to OMB, contact Mr. development of regulatory policies that the corresponding preamble language
Robert Brogan, Information Clearance have federalism implications.’’ ‘‘Policies for §§ 217.2 and 218.4, section 20106 of
Officer, at 202–493–6292 or Gina that have federalism implications’’ are Title 49 of the United States Code
Christodoulou at 202–493–6139, or via defined in the Executive Order to provides that all regulations prescribed
e-mail at robert.brogan@dot.gov or include regulations that have by the Secretary related to railroad
gina.christodoulou@dot.gov. ‘‘substantial direct effects on the States, safety preempt any State law,
on the relationship between the national regulation, or order covering the same
OMB is required to make a decision subject matter, except a provision
concerning the collection of information government and the States, or on the
distribution of power and necessary to eliminate or reduce an
requirements contained in this final rule essentially local safety or security
responsibilities among the various
between 30 and 60 days after hazard that is not incompatible with a
levels of government.’’ Under Executive
publication of this document in the Federal law, regulation, or order and
Order 13132, the agency may not issue
Federal Register. Therefore, a comment a regulation with Federalism that does not unreasonably burden
to OMB is best assured of having its full implications that imposes substantial interstate commerce. This is consistent
effect if OMB receives it within 30 days direct compliance costs and that is not with past practice at FRA, and within
of publication. Any comments should required by statute, unless the Federal the Department of Transportation.
be sent to: The Office of Management government provides the funds FRA has analyzed this final rule in
and Budget, 725 17th Street, NW., necessary to pay the direct compliance accordance with the principles and
Washington, DC 20503, att: FRA Desk costs incurred by State and local criteria contained in Executive Order
Officer. Comments may also be sent via governments, the agency consults with 13132. FRA notes that the above factors
e-mail to OMB at the following address: State and local governments, or the have been considered throughout the
oira_submissions@omb.eop.gov. agency consults with State and local development of this NPRM both
FRA is not authorized to impose a government officials early in the process internally and through consultation
penalty on persons for violating of developing the proposed regulation. within the RSAC forum, as described in
information collection requirements Where a regulation has Federalism Section II of this preamble. After the
which do not display a current OMB implications and preempts State law, Railroad Operating Rules Working
control number, if required. FRA the agency seeks to consult with State Group failed to reach a consensus
and local officials in the process of recommendation, FRA reported the
intends to obtain current OMB control
developing the regulation. Working Group’s unofficial areas of
numbers for any new information
This is a rule with preemptive effect. agreement and disagreement to the
collection requirements resulting from Subject to a limited exception for RSAC. The RSAC has as permanent
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this rulemaking action prior to the essentially local safety hazards, its voting members two organizations
effective date of the final rule. The OMB requirements will establish a uniform representing State and local interests:
control number, when assigned, will be Federal safety standard that must be AASHTO and ASRSM. The RSAC
announced by separate notice in the met, and State requirements covering regularly provides recommendations to
Federal Register. the same subject are displaced, whether the FRA Administrator for solutions to

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Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8495

regulatory issues that reflect significant F. Unfunded Mandates Act of 1995 List of Subjects
input from its State members. To date,
Pursuant to Section 201 of the 49 CFR Part 217
FRA has received no indication of
concerns about the Federalism Unfunded Mandates Reform Act of 1995 Penalties, Railroad safety, and
implications of this rulemaking from (Pub. L. 104–4, 2 U.S.C. 1531), each Reporting and recordkeeping
these representatives or from any other Federal agency ‘‘shall, unless otherwise requirements.
representative. States and other prohibited by law, assess the effects of
Federal regulatory actions on State, 49 CFR Part 218
governments were afforded opportunity
to consult by virtue of the NPRM and local, and tribal governments, and the Occupational safety and health,
comment period. private sector (other than to the extent Penalties, Railroad employees, Railroad
It should be noted that on April 27, that such regulations incorporate safety, and Reporting and recordkeeping
2005, FRA received from the State of requirements specifically set forth in requirements.
California a petition for rulemaking on law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before The Final Rule
the subject of remote control operations
referred to in the SUPPLEMENTARY promulgating any general notice of ■ For the reasons discussed in the
INFORMATION section as ‘‘Technology proposed rulemaking that is likely to preamble, FRA amends parts 217 and
Aided Point Protection.’’ The petition result in the promulgation of any rule 218 of Title 49, Code of Federal
requested that FRA initiate a rulemaking that includes any Federal mandate that Regulations as follows:
‘‘to formally approve and establish rules may result in expenditure by State,
affecting RCL [i.e., remote control local, and tribal governments, in the PART 217—[AMENDED]
locomotive] operations by railroads over aggregate, or by the private sector, of
public highway-rail at-grade crossings.’’ $100,000,000 or more (adjusted ■ 1. The authority citation for part 217
California’s petition did not raise an annually for inflation) currently continues to read as follows:
issue regarding preemption. On October $128,100,000 in any 1 year, and before Authority: 49 U.S.C. 20103, 20107; 28
27, 2005, FRA denied California’s promulgating any final rule for which a U.S.C. 2461, note; and 49 CFR 1.49.
rulemaking petition because it was general notice of proposed rulemaking ■ 2. Section 217.2 is added to read as
procedurally deficient and it did not was published, the agency shall prepare follows:
include sufficient information upon a written statement’’ detailing the effect
which to base a rulemaking proceeding. on State, local, and tribal governments § 217.2 Preemptive effect.
See Docket No. FRA–2005–21094 and the private sector. The final rule Normal State negligence standards
(found at http://dms.dot.gov/). would not result in the expenditure, in apply where there is no Federal action
Nevertheless, this final rule contains the aggregate, of $128,100,000 or more covering the subject matter. Under 49
specific provisions of the kind requested in any one year, and thus preparation of U.S.C. 20106 (section 20106), issuance
in the California petition. such a statement is not required. of the regulations in this part preempts
For the foregoing reasons, FRA any State law, regulation, or order
believes that this final rule is in G. Energy Impact covering the same subject matter, except
accordance with the principles and Executive Order 13211 requires an additional or more stringent law,
criteria contained in Executive Order regulation, or order that is necessary to
Federal agencies to prepare a Statement
13132. eliminate or reduce an essentially local
of Energy Effects for any ‘‘significant
railroad safety or railroad security
E. Environmental Impact energy action.’’ 66 FR 28355 ( May 22,
hazard; that is not incompatible with a
2001). Under the Executive Order, a
FRA has evaluated this final rule in law, regulation, or order of the United
‘‘significant energy action’’ is defined as
accordance with its ‘‘Procedures for States Government; and that does not
Considering Environmental Impacts’’ any action by an agency (normally unreasonably burden interstate
(FRA’s Procedures) (64 FR 28545, May published in the Federal Register) that commerce. Section 20106 permits State
26, 1999) as required by the National promulgates or is expected to lead to the tort actions arising from events or
Environmental Policy Act (42 U.S.C. promulgation of a final rule or activities occurring on or after January
4321 et seq.), other environmental regulation, including notices of inquiry, 18, 2002, for the following: violation of
statutes, Executive Orders, and related advance notices of proposed the Federal standard of care established
regulatory requirements. FRA has rulemaking, and notices of proposed by regulation or order issued by the
determined that this final rule is not a rulemaking: (1)(i) that is a significant Secretary of Transportation (with
major FRA action (requiring the regulatory action under Executive Order respect to railroad safety, such as these
preparation of an environmental impact 12866 or any successor order, and (ii) is regulations) or the Secretary of
statement or environmental assessment) likely to have a significant adverse effect Homeland Security (with respect to
because it is categorically excluded from on the supply, distribution, or use of railroad security); a party’s violation of,
detailed environmental review pursuant energy; or (2) that is designated by the or failure to comply with, its own plan,
to section 4(c)(20) of FRA’s Procedures. Administrator of the Office of rule, or standard that it created pursuant
64 FR 28547, May 26, 1999. In Information and Regulatory Affairs as a to a regulation or order issued by either
accordance with section 4(c) and (e) of significant energy action. FRA has of the two Secretaries; and a party’s
FRA’s Procedures, the agency has evaluated this final rule in accordance violation of a State standard that is
further concluded that no extraordinary with Executive Order 13211. FRA has necessary to eliminate or reduce an
circumstances exist with respect to this determined that this final rule is not essentially local safety or security
regulation that might trigger the need for likely to have a significant adverse effect hazard, is not incompatible with a law,
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a more detailed environmental review. on the supply, distribution, or use of regulation, or order of the United States
As a result, FRA finds that this final rule energy. Consequently, FRA has Government, and does not unreasonably
is not a major Federal action determined that this regulatory action is burden interstate commerce. Nothing in
significantly affecting the quality of the not a ‘‘significant energy action’’ within section 20106 creates a Federal cause of
human environment. the meaning of Executive Order 13211. action on behalf of an injured party or

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confers Federal question jurisdiction for (2) Written records documenting accordance with its program. Each
such State law causes of action. qualification of each railroad testing record shall specify the officer
■ 3. Section 217.4 is amended by adding officer shall be retained at the railroad’s administering the test and inspection
the following definitions of Associate system headquarters and at the division and each employee tested. These
Administrator for Safety, FRA, and headquarters for each division where records shall be retained at the system
Qualified in alphabetical order to read the officer is assigned and shall be made headquarters and at each division
as follows: available to representatives of the FRA headquarters where the tests and
for inspection and copying during inspections are conducted for one
§ 217.4 Definitions. normal business hours. calendar year after the end of the
* * * * * (c) Written program of operational calendar year to which they relate.
Associate Administrator for Safety tests and inspections. Every railroad These records shall be made available to
means the Associate Administrator for shall have a written program of representatives of the FRA for
Safety of the Federal Railroad operational tests and inspections in inspection and copying during normal
Administration or that person’s delegate effect. New railroads shall have such a business hours.
as designated in writing. program within 30 days of commencing (2) Each railroad shall retain one copy
* * * * * rail operations. The program shall— of its current program for periodic
FRA means the Federal Railroad (1) Provide for operational testing and performance of the operational tests and
Administration. inspection under the various operating inspections required by paragraph (a) of
Qualified means that a person has conditions on the railroad. As of July 1, this section and one copy of each
successfully completed all instruction, 2008, the program must address with subsequent amendment to such
training, and examination programs particular emphasis those operating program. These records shall be retained
required by the railroad and this part rules that cause or are likely to cause the at the system headquarters and at each
and that the person, therefore, has most accidents or incidents, such as division headquarters where the tests
actual knowledge or may reasonably be those accidents or incidents identified and inspections are conducted for three
expected to have knowledge of the in the quarterly reviews, six month calendar years after the end of the
subject on which the person is expected reviews, and the annual summaries as calendar year to which they relate.
to be competent. required under paragraphs (e) and (f) of These records shall be made available to
* * * * * this section, as applicable; representatives of the FRA for
■ 4. Section 217.9 is revised to read as
(2) Require a minimum number of inspection and copying during normal
follows: tests and inspections per year covering business hours.
the requirements of part 218, subpart F (e) Reviews of tests and inspections
§ 217.9 Program of operational tests and of this chapter; and adjustments to the program of
inspections; recordkeeping. (3) Describe each type of operational operational tests. This paragraph (e)
(a) Requirement to conduct test and inspection required, including shall apply to each Class I railroad and
operational tests and inspections. Each the means and procedures used to carry the National Railroad Passenger
railroad to which this part applies shall it out; Corporation effective July 1, 2008 and to
periodically conduct operational tests (4) State the purpose of each type of all other railroads subject to this
and inspections to determine the extent operational test and inspection; paragraph effective January 1, 2009.
of compliance with its code of operating (5) State, according to operating (1) Reviews by railroads other than
rules, timetables, and timetable special divisions where applicable, the passenger railroads. Each railroad to
instructions, specifically including tests frequency with which each type of which this part applies shall conduct
and inspections sufficient to verify operational test and inspection is to be periodic reviews and analyses as
compliance with the requirements of conducted; provided in this paragraph and shall
subpart F of part 218 of this chapter, in (6) As of July 1, 2008, identify the retain, at each division headquarters,
accordance with a written program as officer(s) by name, job title, and, where applicable, and at its system
required by paragraph (c) of this section. division or system, who shall be headquarters, one copy of the following
(b) Railroad and railroad testing responsible for ensuring that the written reviews, provided however that
officer responsibilities. The program of operational tests and this requirement does not apply to
requirements of this paragraph are inspections is properly implemented. either a railroad with less than 400,000
applicable on or after July 1, 2008. The responsibilities of such officers total employee work hours annually or
(1) Each railroad officer who conducts shall include, but not be limited to, a passenger railroad subject to
operational tests and inspections ensuring that the railroad’s testing paragraph (e)(2) of this section.
(railroad testing officer) shall: officers are directing their efforts in an (i) Quarterly review. The designated
(i) Be qualified on the railroad’s appropriate manner to reduce accidents/ officer of each division headquarters, or
operating rules in accordance with incidents and that all required reviews system headquarters, if no division
§ 217.11 of this part; and summaries are completed. A headquarters exists, shall conduct a
(ii) Be qualified on the operational railroad with divisions shall identify at written quarterly review of the accident/
testing and inspection program least one officer at the system incident data, the results of prior
requirements and procedures relevant to headquarters who is responsible for operational tests and inspections, and
the testing and inspections the officer overseeing the entire program and the other pertinent safety data for that
will conduct; implementation by each division. division or system to identify the
(iii) Receive appropriate field training, (7) Include a schedule for making the relevant operating rules related to those
as necessary to achieve proficiency, on program fully operative within 210 days accidents/incidents that occurred
each operational test or inspection that after it begins. during the quarter. The review shall also
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the officer is authorized to conduct; and (d) Records. (1) Each railroad to include the name of each railroad
(iv) Conduct operational tests and which this part applies shall keep a testing officer, the number of tests and
inspections in accordance with the record of the date, time, place, and inspections conducted by each officer,
railroad’s program of operational tests result of each operational test and and whether the officer conducted the
and inspections. inspection that was performed in minimum number of each type of test or

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inspection required by the railroad’s review, the designated officer(s) shall and keyboard) and either a facsimile
program. Based upon the results of that make any necessary adjustments to the machine or a printer connected to the
review, the designated officer shall tests and inspections required of computer to retrieve and produce
make any necessary adjustments to the railroad officers for the subsequent information in a usable format for
tests and inspections required of period(s); and immediate review by FRA
railroad officers for the subsequent (iii) Implementation of the program of representatives;
period(s). Quarterly reviews and operational tests and inspections from a (4) The railroad has a designated
adjustments shall be completed no later system perspective, to ensure that it is representative who is authorized to
than 30 days after the quarter has ended. being utilized as intended, that the other authenticate retrieved information from
(ii) Six month review. The designated reviews provided for in this paragraph the electronic system as true and
officer of each system headquarters have been properly completed, that accurate copies of the electronically
office responsible for development and appropriate adjustments have been kept records; and
administration of the program of made to the distribution of tests and
operational tests and inspections shall (5) The railroad provides
inspections required, and that the representatives of the FRA with
conduct a review of the program of railroad testing officers are
operational tests and inspections on a immediate access to these records for
appropriately directing their efforts. inspection and copying during normal
six month basis to ensure that it is being (3) Records retention. The records of
utilized as intended, that the quarterly business hours and provides printouts
periodic reviews required in paragraphs of such records upon request.
reviews provided for in this paragraph (e)(1) and (e)(2) of this section shall be
have been properly completed, that retained for a period of one year after (h) Upon review of the program of
appropriate adjustments have been the end of the calendar year to which operational tests and inspections
made to the distribution of tests and they relate and shall be made available required by this section, the Associate
inspections required, and that the to representatives of FRA for inspection Administrator for Safety may, for cause
railroad testing officers are and copying during normal business stated, disapprove the program.
appropriately directing their efforts. Six hours. Notification of such disapproval shall be
month reviews shall be completed no made in writing and specify the basis
(f) Annual summary of operational
later than 60 days after the review for the disapproval decision. If the
tests and inspections. Before March 1 of
period has ended. Associate Administrator for Safety
each calendar year, each railroad to
(2) Reviews by passenger railroads. disapproves the program,
which this part applies, except for a
Not less than once every six months, the (1) The railroad has 35 days from the
railroad with less than 400,000 total
designated officer(s) of the National date of the written notification of such
employee work hours annually, shall
Railroad Passenger Corporation and of disapproval to:
retain, at each of its division
each railroad providing commuter
headquarters and at the system (i) Amend its program and submit it
service in a metropolitan or suburban
headquarters of the railroad, one copy of to the Associate Administrator for
area shall conduct periodic reviews and
a written summary of the following with Safety for approval; or
analyses as provided in this paragraph
respect to its previous calendar year (ii) Provide a written response in
and shall retain, at each division
activities: The number, type, and result support of the program to the Associate
headquarters, where applicable, and at
of each operational test and inspection, Administrator for Safety, who informs
its system headquarters, one copy of the
stated according to operating divisions the railroad of FRA’s final decision in
reviews. Each such review shall be
where applicable, that was conducted as writing; and
completed within 30 days of the close
of the period. The designated officer(s) required by paragraphs (a) and (c) of this
(2) A failure to submit the program
shall conduct a written review of: section. These records shall be retained
with the necessary revisions to the
(i) The operational testing and for three calendar years after the end of
Associate Administrator for Safety in
inspection data for each division, if any, the calendar year to which they relate
accordance with this paragraph will be
or the system to determine compliance and shall be made available to
considered a failure to implement a
by the railroad testing officers with its representatives of the FRA for
program under this part.
program of operational tests and inspection and copying during normal
inspections required by paragraph (c) of business hours. ■ 5. Section 217.11(c) is revised to read
this section. At a minimum, this review (g) Electronic recordkeeping. Each as follows:
shall include the name of each railroad railroad to which this part applies is
§ 217.11 Program of instruction on
testing officer, the number of tests and authorized to retain by electronic operating rules; recordkeeping; electronic
inspections conducted by each officer, recordkeeping the information recordkeeping.
and whether the officer conducted the prescribed in this section, provided that
* * * * *
minimum number of each type of test or all of the following conditions are met:
(1) The railroad adequately limits and (c) Each railroad to which this part
inspection required by the railroad’s
controls accessibility to such applies is authorized to retain by
program;
information retained in its electronic electronic recordkeeping its program for
(ii) Accident/incident data, the results
database system and identifies those periodic instruction of its employees on
of prior operational tests and
inspections, and other pertinent safety individuals who have such access; operating rules provided that the
data for each division, if any, or the (2) The railroad has a terminal at the requirements stated in § 217.9(g)(1)
system to identify the relevant operating system headquarters and at each through (5) of this part are satisfied.
rules related to those accidents/ division headquarters; ■ 6. Appendix A to part 217 is amended
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incidents that occurred during the (3) Each such terminal has a computer by revising the entry for § 217.9 to read
period. Based upon the results of that (i.e., monitor, central processing unit, as follows:

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APPENDIX A TO PART 217—SCHEDULE OF CIVIL PENALTIES


Section Violation Willful violation

* * * * * * *
217.9 Operational tests and inspections:
(a) Failure to implement a program .......................................................................................................... $9,500–12,500 $13,000–16,000
(b) Railroad and railroad testing officer responsibilities:
(1) Failure to provide instruction, examination, or field training, or failure to conduct tests in ac-
cordance with program .................................................................................................................. 9,500 13,000
(2) Records ........................................................................................................................................ 7,500 11,000
(c) Record of program; program incomplete ............................................................................................ 7,500–12,500 11,000–16,000
(d) Records of individual tests and inspections ....................................................................................... 7,500 ............................
(e) Failure to retain copy of or conduct:
(1)(i) Quarterly review ........................................................................................................................ 9,500 13,000
(1)(ii) and (2) Six month review ......................................................................................................... 9,500 13,000
(3) Records ........................................................................................................................................ 7,500 11,000
(f) Annual summary .................................................................................................................................. 7,500 11,000
(h) Failure to timely or appropriately amend program after disapproval .................................................. 9,500–12,500 13,000–16,000

* * * * * * *

PART 218—[AMENDED] section 20106 creates a Federal cause of member must leave one lighted fusee
action on behalf of an injured party or and while returning to the crew
■ 7. The authority citation for part 218 confers Federal question jurisdiction for member’s train, the crew member must
continues to read as follows: such State law causes of action. also place single lighted fusees at
Authority: 49 U.S.C. 20103, 20107; 28 ■ 9. Section 218.5 is amended by intervals that do not exceed the burning
U.S.C. 2461, note; and 49 CFR 1.49. revising the definitions of Flagman’s time of the fusee. When the train
■ 8. Section 218.4 is added to read as signals and Locomotive to read as departs, a crew member must leave one
follows: follows: lighted fusee and until the train resumes
speed not less than one-half the
§ 218.4 Preemptive effect. § 218.5 Definitions. maximum authorized speed (including
Normal State negligence standards * * * * * slow order limits) in that territory, the
apply where there is no Federal action Flagman’s signals means a red flag by crew member must drop off single
covering the subject matter. Under 49 day and a white light at night, and lighted fusees at intervals that do not
U.S.C. 20106 (section 20106), issuance fusees as prescribed in the railroad’s exceed the burning time of the fusee.
of the regulations in this part preempts operating rules. (iv) When required by the railroad’s
any State law, regulation, or order * * * * * operating rules, a forward crew member
covering the same subject matter, except Locomotive means, except for with flagman’s signals must protect the
an additional or more stringent law, purposes of subpart F of this part, a self- front of the crew member’s train against
regulation, or order that is necessary to propelled unit of equipment designed opposing movements by immediately
eliminate or reduce an essentially local for moving other railroad rolling going forward at least the distance
railroad safety or railroad security equipment in revenue service including prescribed by timetable or other
hazard; that is not incompatible with a a self-propelled unit designed to carry instructions for the territory, displaying
law, regulation, or order of the United freight or passenger traffic, or both, and one lighted fusee, and remaining at that
States Government; and that does not may consist of one or more units location until recalled.
unreasonably burden interstate operated from a single control. * * * * *
commerce. Section 20106 permits State * * * * * ■ 11. Add new subpart F to part 218 to
tort actions arising from events or
■ 10. Section 218.37 is amended by read as follows:
activities occurring on or after January
revising paragraphs (a)(1)(iii) and
18, 2002, for the following: Violation of Subpart F—Handling Equipment, Switches,
(a)(1)(iv) to read as follows: and Fixed Derails
the Federal standard of care established
by regulation or order issued the § 218.37 Flag protection. Sec.
Secretary of Transportation (with (a) * * * 218.91 Purpose and scope.
respect to railroad safety, such as these (1) * * * 218.93 Definitions.
regulations) or the Secretary of (iii) When a train stops on main track, 218.95 Instruction, training, and
examination.
Homeland Security (with respect to flag protection against following trains 218.97 Good faith challenge procedures.
railroad security); a party’s violation of, on the same track must be provided as 218.99 Shoving or pushing movements.
or failure to comply with, its own plan, follows: A crew member with flagman’s 218.101 Leaving rolling and on-track
rule, or standard that it created pursuant signals must immediately go back at maintenance-of-way equipment in the
to a regulation or order issued by either least the distance prescribed by clear.
of the two Secretaries; and a party’s timetable or other instructions for the 218.103 Hand-operated switches, including
violation of a State standard that is territory and display one lighted fusee. crossover switches.
necessary to eliminate or reduce an The crew member may then return one- 218.105 Additional operational
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requirements for hand-operated main


essentially local safety or security half of the distance to the crew track switches.
hazard, is not incompatible with a law, member’s train where the crew member 218.107 Additional operational
regulation, or order of the United States must remain until the crew member has requirements for hand-operated
Government, and does not unreasonably stopped the approaching train or is crossover switches.
burden interstate commerce. Nothing in recalled. When recalled, the crew 218.109 Hand-operated fixed derails.

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Subpart F—Handling Equipment, grade crossing where a public highway, the remote control movement, i.e., the
Switches, and Fixed Derails road, street, or private roadway, end on which the locomotive is located.
including associated sidewalks and Roadway maintenance activity means
§ 218.91 Purpose and scope. pathways, crosses one or more railroad any work limited to the duties
(a) The purpose of this subpart is to tracks at grade, and is identified by a prescribed for a roadway worker by
prevent accidents and casualties that U.S. DOT National Highway-Rail Grade definition in this section, including
can result from the mishandling of Crossing Inventory Number, or is movement of on-track maintenance-of-
equipment, switches, and fixed derails. marked by crossbucks, stop signs, or way equipment other than locomotives.
(b) This subpart prescribes minimum other appropriate signage indicating the Roadway worker means any employee
operating rule requirements for the presence of an at-grade crossing. of a railroad, or of a contractor to a
handling of equipment, switches, and Industry track means a switching railroad, whose duties include
fixed derails. Each railroad may track, or series of tracks, serving the inspection, construction, maintenance
prescribe additional or more stringent needs of a commercial industry other or repair of railroad track, bridges,
requirements in its operating rules, than a railroad. roadway, signal and communication
timetables, timetable special Lite locomotive consist means two or systems, electric traction systems,
instructions, and other instructions. more locomotive units coupled without roadway facilities or roadway
§ 218.93 Definitions. cars attached, regardless of whether the maintenance machinery on or near track
locomotive units are connected so that or with the potential of fouling a track,
As used in this subpart—
they may be operated from a single and flagmen and watchmen/lookouts as
Associate Administrator for Safety
control stand. defined in § 214.7 of this chapter.
means the Associate Administrator for
Locomotive means, for purposes of Roadway worker in charge means a
Safety of the Federal Railroad
this subpart only, a piece of on-track roadway worker who is qualified in
Administration or that person’s delegate
equipment (other than specialized accordance with § 214.353 of this
as designated in writing.
Clearance point means the location roadway maintenance equipment or a chapter for the purpose of establishing
near a turnout beyond which it is unsafe dual purpose vehicle operating in on-track safety for roadway work
for passage on an adjacent track(s). accordance with § 240.104(a)(2) of this groups.
Where a person is permitted by a chapter): Siding means an auxiliary track,
railroad’s operating rules to ride the side (1) With one or more propelling adjacent and connected to a main track,
of a car, a clearance point shall motors designed for moving other used for meeting or passing trains.
accommodate a person riding the side of equipment; Signaled siding means a siding within
a car. (2) With one or more propelling traffic control system (TCS) territory or
Correspondence of crossover switches motors designed to carry freight or within interlocking limits where a
means both crossover switches are lined passenger traffic or both; or signal indication authorizes the siding’s
for the crossover or both are lined for (3) Without propelling motors but use.
the straight tracks. with one or more control stands. Switchtender means a qualified
Crossover means, for purposes of this Pedestrian crossing means a separate employee assigned to handle switches at
subpart only, a track connection designated sidewalk or pathway where a specific location.
between two adjacent, but not pedestrians, but not vehicles, cross Track is clear means:
necessarily parallel, tracks, consisting of railroad tracks. Sidewalk crossings (1) The portion of the track to be used
two switches, which is intended to be contiguous with, or separate but for the intended movement is
used primarily for the purpose of adjacent to, highway-rail grade unoccupied by rolling equipment, on-
crossing over from one track to another. crossings, are presumed to be part of the track maintenance-of-way equipment,
Employee means an individual who is highway-rail grade crossings and are not and conflicting on-track movements;
engaged or compensated by a railroad or considered pedestrian crossings. (2) Intervening public highway-rail
by a contractor to a railroad to perform Qualified means that a person has grade crossings, private highway-rail
any of the duties defined in this subpart. successfully completed all instruction, grade crossings outside the physical
Foul or fouling a track means rolling training, and examination programs confines of a railroad yard, pedestrian
equipment or on-track maintenance-of- required by the railroad and this subpart crossings outside of the physical
way equipment is located such that the and that the person, therefore, has confines of a railroad yard, and yard
end of the equipment is between the actual knowledge or may reasonably be access crossings are protected as
clearance point and the switch points expected to have knowledge of the follows:
leading to the track on which the subject on which the person is expected (i) Crossing gates are in the fully
equipment is standing. to be competent. lowered position, and are not known to
FRA means the Federal Railroad Remote control operator means a be malfunctioning; or
Administration. locomotive engineer, as defined in (ii) A designated and qualified
Hand-operated switch means any type § 240.7 of this chapter, certified by a employee is stationed at the crossing
of switch when operated by manual railroad to operate remote control and has the ability to communicate with
manipulation. For purposes of this locomotives pursuant to § 240.107 of trains; or
subpart, a hand-operated switch does this chapter. (iii) At crossings equipped only with
not include switches operated by push Remote control zone means one or flashing lights or passive warning
button or radio control when such more tracks within defined limits devices, when it is clearly seen that no
switch is protected by distant switch designated in the timetable special traffic is approaching or stopped at the
indicators, switch point indicators, or instructions, or other railroad crossing and the leading end of the
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other visual or audio verification that publication, within which remote movement over the crossing does not
the switch points are lined for the control locomotives, under certain exceed 15 miles per hour;
intended route and fit properly. circumstances specified in this part, (3) Intervening switches and fixed
Highway-rail grade crossing means, may be operated without an employee derails are properly lined for the
for purposes of this subpart only, an at- assigned to protect the pull-out end of intended movement; and

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(4) The portion of the track to be used employees thereafter required to the employee has been directed to either
for the intended movement has perform duties subject to the take actions that would violate FRA
sufficient room to contain the rolling requirements in this subpart shall be regulations regarding the handling of
equipment being shoved or pushed. qualified before performing duties equipment, switches, and fixed derails
Yard access crossing means a private subject to the requirements in this as required by this subpart, or to take
highway-rail grade crossing that is subpart. actions that would violate the railroad’s
located within the physical confines of (4) After January 1, 2009, no employee operating rules implementing the
a railroad yard and is either: shall perform work requiring requirements of this subpart.
(1) Open to unrestricted public access; compliance with the operating rules (b) General procedures. Each railroad
or implementing the requirements of this or employer is responsible for the
(2) Open to persons other than subpart unless qualified on these rules training of and compliance by its
railroad employees going about their within the previous three years. employees with the requirements of this
normal duties, e.g., business guests or (5) The records of successful subpart.
family members. completion of instruction, examination (1) Each railroad or employer shall
and training required by this section adopt and implement written
§ 218.95 Instruction, training, and shall document qualification of
examination. procedures which guarantee each
employees under this subpart. employee the right to challenge in good
(a) Program. Effective July 1, 2008, (b) Written records documenting faith whether the procedures that will
each railroad shall maintain a written successful completion of instruction, be used to accomplish a specific task
program of instruction, training, and training, and examination of each comply with the requirements of this
examination of employees for employee required by this subpart shall subpart or any operating rule relied
compliance with operating rules be retained at its system headquarters upon to fulfill the requirements of this
implementing the requirements of this and at the division headquarters for subpart. Each railroad or employer’s
subpart to the extent these requirements each division where the employee is written procedures shall provide for
are pertinent to the employee’s duties. assigned for three calendar years after prompt and equitable resolution of
If all requirements of this subpart are the end of the calendar year to which challenges made in accordance with this
satisfied, a railroad may consolidate any they relate and made available to subpart.
portion of the instruction, training or representatives of the FRA for
examination required by this subpart (2) The written procedures required
inspection and copying during normal by this section shall indicate that the
with the program of instruction required business hours. Each railroad to which
under § 217.11 of this chapter. An good faith challenge described in
this part applies is authorized to retain paragraph (b)(1) of this section is not
employee who successfully completes a program, or any records maintained to
all instruction, training, and intended to abridge any rights or
prove compliance with such a program, remedies available to the employee
examination required by this written by electronic recordkeeping in
program shall be considered qualified. under a collective bargaining agreement,
accordance with §§ 217.9(g) and or any Federal law including, but not
(1) The written program of 217.11(c) of this chapter.
instruction, training, and examination limited to, 29 U.S.C. 651 et seq., 6
(c) Upon review of the program of U.S.C. 1142, or 49 U.S.C. 20109.
shall address the requirements of this instruction, training, and examination
subpart, as well as consequences of (3) Each affected employee shall be
required by this section, the Associate instructed on the written procedures
noncompliance. Administrator for Safety may, for cause
(2) The written program of required by this paragraph as part of the
stated, disapprove the program. training prescribed by § 217.11 of this
instruction, training, and examination Notification of such disapproval shall be
shall include procedures addressing chapter.
made in writing and specify the basis (4) A copy of the current written
how the railroad qualifies employees in for the disapproval decision. If the
any technology necessary to accomplish procedures shall be provided to each
Associate Administrator for Safety affected employee and made available
work subject to the requirements of this disapproves the program,
subpart. Such procedures shall include, for inspection and copying by
(1) The railroad has 35 days from the
but are not limited to, those which representatives of the FRA during
date of the written notification of such
explain: normal business hours.
disapproval to:
(i) The purpose for using the (i) Amend its program and submit it (c) The written procedures shall—
technology; to the Associate Administrator for (1) Grant each employee the right to
(ii) How an employee will be Safety for approval; or challenge any directive which, based on
expected to use the technology; (ii) Provide a written response in the employee’s good faith
(iii) How to detect malfunctioning support of the program to the Associate determination, would cause the
equipment or deviations from proper Administrator for Safety, who informs employee to violate any requirement of
procedures; the railroad of FRA’s final decision in this subpart or any operating rule relied
(iv) How to respond when equipment writing; and upon to fulfill the requirements of this
malfunctions or deviations from proper (2) A failure to submit the program subpart;
procedures are detected; and with the necessary revisions to the (2) Provide that the railroad or
(v) How to prevent unintentional Associate Administrator for Safety in employer shall not require the
interference with the proper functioning accordance with this paragraph will be challenging employee to comply with
of the technology. considered a failure to implement a the directive until the challenge
(3) Implementation schedule for program under this part. resulting from the good faith
employees, generally. Each employee determination is resolved;
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performing duties subject to the § 218.97 Good faith challenge procedures. (3) Provide that the railroad or
requirements in this subpart shall be (a) Employee Responsibility. An employer may require the challenging
initially qualified prior to January 1, employee shall inform the railroad or employee to perform tasks unrelated to
2009. Employees hired between April employer whenever the employee the challenge until the challenge is
14, 2008 and January 1, 2009, and all makes a good faith determination that resolved;

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(4) Provide that the railroad or to the railroad or employer’s final equipment shall not be shoved or
employer may direct an employee, other decision before the tour of duty is pushed until the locomotive engineer
than the challenging employee, to complete. The employee shall be participating in the move has been
perform the challenged task prior to the afforded the opportunity to retain a briefed by the employee who will direct
challenge being resolved as long as this copy of the protest; the move. The job briefing shall include
other employee is informed of the (4) Provide that the employee, upon the means of communication to be used
challenge and does not also make a good written request, has a right to further between the locomotive engineer and
faith determination that the challenged review by a designated railroad or the employee directing the move and
task would violate FRA regulations employer officer, within 30 days after how point protection will be provided.
regarding the handling of equipment, the expiration of the month during (2) No unrelated tasks. During the
switches, and fixed derails as required which the challenge occurred, for the shoving or pushing movement, the
in this subpart, or a railroad’s operating purpose of verifying the proper employee directing the movement shall
rules implementing the requirements of application of the regulation, law, not engage in any task unrelated to the
this subpart; procedure or rule in question. The oversight of the shoving or pushing
(5) Provide that a challenge may be verification decision shall be made in movement.
resolved by: writing to the employee. (3) Point protection. When rolling
(i) A railroad or employer officer’s (e) Recordkeeping and record equipment or a lite locomotive consist
acceptance of the employee’s request; retention. (1) A copy of the written is shoved or pushed, point protection
(ii) An employee’s acceptance of the procedures required by this section shall be provided by a crewmember or
directive; shall be retained at the employer or other qualified employee by:
(iii) An employee’s agreement to a railroad’s system headquarters and at (i) Visually determining that the track
compromise solution acceptable to the each division headquarters, and made is clear. The determination that the
person issuing the directive; or available to representatives of the FRA track is clear may be made with the aid
(iv) As further determined under for inspection and copying during of monitored cameras or other
paragraph (d) of this section. normal business hours. technological means, provided that it
(d) In the event that the challenge (2) A copy of any written good faith and the procedures for use provide an
cannot be resolved because the person challenge verification decision, made in equivalent level of protection to that of
issuing the directive determines that the accordance with paragraph (d)(4) of this a direct visual determination by a
employee’s challenge has not been made section, shall be retained at the crewmember or other qualified
in good faith or there is no reasonable employer or railroad’s system employee properly positioned to make
alternative to the direct order, the headquarters and at the division the observation as prescribed in this
written procedures shall: headquarters to which the employee section and appendix D to this part; and
(1) Provide for immediate review by at was working when the challenge was (ii) Giving signals or instructions
least one officer of the railroad or initiated, and made available to necessary to control the movement.
employer, except for each railroad with representatives of the FRA for (c) Additional requirements for
less than 400,000 total employee work inspection and copying during normal remote control movements. All remote
hours annually. This immediate review business hours for at least one calendar control movements are considered
shall: year after expiration of the year during shoving or pushing movements, except
(i) Not be conducted by the person which the decision was issued. when the remote control operator
issuing the challenged directive, or that (3) Each employer or railroad to controlling the movement is riding the
person’s subordinate; and which this subpart applies is authorized leading end of the leading locomotive in
(ii) Provide that a challenge may be to retain by electronic recordkeeping the a position to visually determine
resolved by using the same options information prescribed in this subpart conditions in the direction of
available for resolving the challenge as in accordance with the electronic movement. In addition to the other
the initial officer as well as the option recordkeeping standards set forth in requirements of this section,
described in paragraph (d)(2) of this § 217.9(g)(1) through (5) of this chapter. (1) When initiating a remote control
section, except that the reviewing shoving or pushing movement:
officer’s decision shall not be subject to § 218.99 Shoving or pushing movements. (i) The remote control operator shall
further immediate review, unless (a)(1) Each railroad shall adopt and visually determine the direction the
provided for in the railroad’s or comply with an operating rule which equipment moves; or
employer’s written procedures; complies with the requirements of this (ii) A member of the crew shall
(2) Provide that if the officer making section. When any person including, but visually determine the direction the
the railroad’s or employer’s final not limited to, each railroad, railroad equipment moves and confirm the
decision concludes that the challenged officer, supervisor, and employee direction with the remote control
directive would not cause the employee violates any requirement of an operating operator. If no confirmation is received,
to violate any requirement of this rule which complies with the the movement shall be immediately
subpart or the railroad’s or employer’s requirements of this section, that person stopped; and
operating rule relied upon to fulfill the shall be considered to have violated the (2) If technology is relied upon,
requirements of this subpart and directs requirements of this section. whether primarily or as a safeguard, to
the employee to perform the challenged (2) The following requirements for provide pull-out protection by
directive, the officer shall further shoving or pushing movements do not preventing the movement from
explain to the employee that Federal apply to rolling equipment intentionally exceeding the limits of a remote control
law may protect the employee from shoved or pushed to permit the rolling zone, the technology shall be
retaliation if the employee refuses to do equipment to roll without power demonstrated
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the work and if the employee’s refusal attached, i.e., free rolling equipment, (i) To be failsafe; or
is a lawful, good faith act; during switching activities known as (ii) To provide suitable redundancy to
(3) Provide that the employee be kicking, humping, or dropping cars. prevent unsafe failure.
afforded an opportunity to document (b) General movement (d) Remote control zone, exception to
electronically or in writing any protest requirements.—(1) Job briefing. Rolling track is clear requirements. After an

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initial track is clear determination has (B) A designated and qualified points will not permit a person to safely
been made in an activated remote employee is stationed at the crossing ride on the side of a car.
control zone, it is not necessary to make and has the ability to communicate with
a new determination prior to each § 218.103 Hand-operated switches,
trains; or
including crossover switches.
subsequent shoving or pushing (C) At crossings equipped only with
movement provided that: flashing lights or passive warning (a)(1) Each railroad shall adopt and
(1) The controlling locomotive of the devices, when it is clearly seen that no comply with an operating rule which
remote control movement is on the traffic is approaching or stopped at the complies with the requirements of this
leading end in the direction of crossing and the leading end of the section. When any person including, but
movement, i.e., the movement occurs on movement over the crossing does not not limited to, each railroad, railroad
the pull-out end; exceed 15 miles per hour; and officer, supervisor, and employee
(2) The remote control zone is not (v) Movement shall not be made into violates any requirement of an operating
jointly occupied; and or within interlocking limits or rule which complies with the
(3) The initial determination was controlled point limits unless the requirements of this section, that person
made by a crewmember of either: following conditions are met: shall be considered to have violated the
(i) The remote control crew; (A) The signal governing movement is requirements of this section.
(ii) A relieved remote control crew more favorable than restricting aspect; (2) Each railroad shall specify
who has transferred the remote control (B) Each signal governing movement minimum requirements necessary for an
zone directly to the relieving crew; or into and through interlocking limits or adequate job briefing.
(iii) The last jointly occupying crew controlled point limits shall be (b) General. Employees operating or
who directly communicates, i.e., not continuously observed by a member of verifying the position of a hand-
through a third party, to a remote that crew who is in a position to operated switch shall:
control crewmember that the remote determine that the train’s movement has (1) Conduct job briefings, before work
control zone is no longer jointly occupied the circuit controlling that is begun, each time a work plan is
occupied and meets the requirements signal as evidenced by that signal changed, and at completion of the work;
for track is clear. assuming its most restrictive aspect; and (2) Be qualified on the railroad’s
(e) Operational exceptions. A railroad (C) The movement does not exceed operating rules relating to the operation
does not need to comply with the train’s length. of the switch;
paragraphs (b) through (d) of this (3) Be individually responsible for the
section in the following circumstances: § 218.101 Leaving rolling and on-track position of the switch in use;
(1) Push-pull operations when maintenance-of-way equipment in the clear. (4) Visually determine that switches
operated from the leading end in the (a) Each railroad shall adopt and are properly lined for the intended route
direction of movement, i.e., push mode; comply with an operating rule which and that no equipment is fouling the
(2) Shoving or pushing operations complies with the requirements of this switches;
with manned helper locomotives or section. When any person including, but (5) Visually determine that the points
distributed power locomotives assisting not limited to, each railroad, railroad fit properly and the target, if so
a train when the train is being operated officer, supervisor, and employee equipped, corresponds with the switch’s
from the leading end in the direction of violates any requirement of an operating position;
movement; rule which complies with the (6) After operating a switch and before
(3) During the performance of requirements of this section, that person making movements in either direction
roadway maintenance activity under the shall be considered to have violated the over the switch, ensure that the switch
direct control of a roadway worker requirements of this section. is secured from unintentional
performing work in accordance with (b) Rolling and on-track maintenance- movement of the switch points;
railroad operating rules specific to of-way equipment shall not be left (7) Ensure that a switch is not
roadway workers; or where it will foul a connecting track operated while rolling and on-track
(4) When the leading end of a shoving unless: maintenance-of-way equipment is
movement is on a main track or signaled (1) The equipment is standing on a fouling the switch, or standing or
siding, under the following conditions: main track and a siding track switch moving over the switch; and
(i) The train dispatcher gives that the equipment is fouling is lined for (8) After operating a switch, ensure
authority or permission to make the the main track on which the equipment that when not in use, each switch is
movement and verifies that: is standing; or locked, hooked, or latched, if so
(A) Another movement or work (2) The equipment is standing on a equipped.
authority is not in effect within the siding and a main track switch that the (c) Rolling and on-track maintenance-
same or overlapping limits unless equipment is fouling is lined for the of-way equipment shall not foul a track
conflicting movements are protected; siding on which the equipment is until all hand-operated switches
and standing; or connected with the movement are
(B) A main track is not removed from (3) The equipment is standing on a properly lined, or in the case of hand-
service by a work authority within the yard switching lead track, and the yard operated switches designed and
same or overlapping limits; track switch that the equipment is permitted to be trailed through, until the
(ii) Movement is limited to the train’s fouling is lined for the yard switching intended route is seen to be clear or the
authority; lead track on which the equipment is train has been granted movement
(iii) Movement shall not be made into standing; or authority. When a conflicting movement
or within yard limits, restricted limits, (4) The equipment is on an industry is approaching a hand-operated switch,
drawbridges, or work authority limits; track beyond the clearance point of the the track shall not be fouled or the
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(iv) Movement shall not enter or foul switch leading to the industry. switch operated.
a highway-rail grade crossing or (c) Each railroad shall implement (d) When rolling and on-track